Dry Times Make Bad Water Law

In law school, students are often told: “Hard cases make bad law.” That is, drawing general principles from the most complex cases may not always be a good idea. In the same way, the California drought could offer a new maxim for environmental management: “Dry times make bad water management.” When water is scarce, new proposals that have languished for years suddenly come to the fore–and not all of them are very good ideas.

The Washington Post took House Republicans to task Monday for passing a bill last week that would prioritize farming over environmental uses in the Central Valley. Whatever its merits, such sudden interventions are often a poor substitute for careful management of water among all users. The Post points out that the potential consequences affect more than just endangered species, but also the fishing industry and other water uses.

It is also odd to find Republicans turning to the federal government to impose a solution on the state, but that is what the new bill essentially demands, turning California Gov. Jerry Brown into an unlikely defender of states’ rights. While it is true that the federal government is part of the problem, especially a federal court decision in 2007 that cut irrigation to save the endangered delta smelt, it is hardly the best venue for a good solution.

The bill has no chance of passing the Democrat-held Senate, in any case. It is a useful way to rally Republicans in California in an election year when the party has a chance at winning back some of the seats it lost in 2012. In that way, the water bill is to Republicans what “comprehensive” immigration reform is for Democrats (and to the GOP establishment): more of a way of posturing about an important problem than actually solving it.

Still, it is interesting that the Post lets Democrats off the hook. Democrats and allied environmental groups have used the bluntest instrument of all, the federal courts, to impose unpopular and inefficient environmental rules on water use (among other activities). And Gov. Brown is busy focusing on a high-speed rail boondoggle that will bankrupt the state rather than addressing the need for new water infrastructure that addresses a real need.

Nature made water scarce in California–not global warming or climate change, as even the Post acknowledges–and therefore it is unlikely that the fight over how water should be allocated will ever be resolved. But there are ways to make the recurring crises less severe, such that users cooperate more often rather than turning to Congress or the courts in largely futile attempts to impose solutions that suit their respective constituencies.

It is useful to consider the case of neighboring Arizona, which is suffering through the same drought but has few worries about water. The conservative state has built reservoirs that retain enough water for several years of use. Yes, the two states are very different–Arizona has few farms or fisheries, not to mention far fewer people. Yet it has also prioritized water in recent years. California has prioritized pensions, unions, and culture wars.

A reasonable goal for California would be to boost its reservoirs and desalination plants such that a sudden, one-year drought is not a threat to the entire state, and so farmers can hope to return to 100 percent of their allocation (as opposed to zero today and 80 percent, at best, in recent years). The fact that the state has failed to do much long-term planning is the reason Republicans justifiably talk about a “man-made” drought.