Guest Perspective (cont.)

Donald Pisani, a western historian, wrote about California water: “Water law evolved slowly in both California and the West, constructed piece by piece, like a quilt, rather than from whole cloth. Individual court cases and statutes were piled layer on layer, not welded together like links in a chain…” To begin with, in 1881, the California Supreme Court, unable to elaborate California-based water law, instead attempted to meld two water rights traditions into what it called the “California Doctrine.” The first tradition was that of riparian rights, which prevailed in the East. Rights in this system were “correlative,” existing only as part of a pool of rights, and could not be sold independently of the land; this was essentially an extension of a common property view wherein each was responsible for the welfare of all. The second was a legal innovation in the history of the arid West, that of prior appropriation, or “first in time, first in right,” which made water as much a commodity as land, minerals, trees, crops and livestock (Pisani, 1992: 11-12). Prior appropriation meant that as long as you were using the water, it was yours. Not surprisingly these two approaches did not make comfortable bedfellows.

From statehood to the beginning of the 20th century, the state legislature ducked creating a systematic statewide approach to regulating water—despite being flooded periodically by the Sacramento River. Rather, the legislature preferred to delegate water development and management to the locals with no financial support. This was consistent with the general sense at the time that an overlarge government offered a feeding ground for corrupt and incompetent bureaucrats, promoted waste and inefficiency, and that state governments invariably tried to assume powers and responsibilities better exercised at the local level (Pisani, 1984: 180).

The state legislature’s approach to water is consistent with its approach to most natural resource management in the state. Land use, for example. In Los Angeles County we have approximately 90 cities. None is obliged to plan or coordinate with its neighbor. We have created a regulatory maze of special districts, schools, sewerage, lighting, air, parks, garbage…because we have a deep ambivalence about government. The result of this ambivalence is a state system wherein there is little ability to address long-term resource and planning issues, including water. In California, therefore, we have an immensely complicated regulatory terrain with elected representatives, appointed boards and commissions, and special districts whose governance can be either elected or appointed. And this is not taking into account more recent developments involving increasing roles for a third and fourth sector: the private sector and the non-profit sector. And so, I would argue, we do not have the capacity to plan for the future in an intelligent manner. Worse yet, this planning is being done not just incrementally, but behind closed doors, by unaccountable officials who do not even talk to one another across agencies. The public is in the dark, almost completely, except for the mantra of scarcity.

Our water purveyance and allocation system is built on assumptions about water availability of the 1920s, 30s, and 40s. To reopen Colorado River water allocations—for example—(but I could also mention the Klamath, the Sacramento, and other rivers) is to open the proverbial Pandora’s box, yet how can we not do so? How can we continue to plan water allocations on exceptionally wet years, yielding 17.5 million acre-feet, when now we believe there are more like 13 million acre-feet annually? And how can we continue to give 400 farmers in the Imperial Valley, who practice some of the most energy-intensive forms of agriculture, pay some of the worst wages, and produce food for cows, water at subsidized rates? But is this the topic of public discussion? No, we do not question the lack of democratic participation, of transparent analyses and decision-making.

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