Last week when some marauding teens bashed a mailbox with a bat, angry neighbors posted on nextdoor.com, “there needs to be a law against that.” Is that just an impulse reaction, or do they really not know there is a law against that. Since 1909, it has been a federal offense to tamper with, vandalize, deface, or destroy mailboxes, under penalty of three years in prison and a $250,000 fine.
People often think things ought to be illegal that already are, that we should regulate things we already do, even that things ought to be defined that already are. I couldn’t help wondering how serious recent headlines were, announcing that several environmental industry groups had petitioned the Bureau of Reclamation to stop allowing water to be wasted in California, Arizona, and Nevada. The petition calls for an understandable definition of “reasonable and beneficial use” because the Bureau says its dams and reservoirs can only deliver water that is “reasonably required for beneficial use.”
A law professor who represents the petitioning groups says she just doesn’t know what that means. “As best as we could tell, [the Bureau has] never defined the phrase and it does not use the phrase in any meaningful way as it’s making water delivery decisions,” she said. The petition was filed by one national and nine local environmental groups. Some of their members might be forgiven for not knowing nuances of western water law, but it would be breathtaking if a law professor teaching the subject really doesn’t know that “beneficial use” has been well understood in the West for over a century. Wasting water is explicitly prohibited, and “beneficial use” explicitly defined, in the laws of every western state.
The AP headline read, “The Colorado River is in trouble. Some groups want the government to step up.” In fact, the government has been threatening the seven states that share the river for years, and during the past decade states have been working endlessly to negotiate an ongoing management strategy for drought years. The petition “argues” that reducing water waste could help ensure the river has a sustainable future – as if there is any argument about that. Another professor, similarly wrapped around the axle on this issue, says, “We don’t have a management future for the Colorado River right now and it’s getting pretty scary.”
The petition is directed at Lower Basin States, but in the Upper Basin, Colorado and the other states have had a very clear management strategy for over a century. It’s called the Interstate Compact, which specifically regulates how much water each state can use for various “beneficial uses.” Those were plainly defined in Colorado’s Constitution and early statutes, including uses of water for agriculture, mining, manufacturing, power generation, municipal and industrial supply. Over time, the legislature has added other beneficial uses, including “recreational in-channel diversions” (such as kayak courses) and instream flows to preserve the environment. One cannot obtain water rights for uses not explicitly authorized by law.
California law is only slightly different. “Beneficial Uses” are also specified, including domestic, municipal, agricultural, industrial, power generation, and groundwater recharge. Later laws also added aesthetic, scenic, environmental, and recreational uses, including instream flows for habitat. But the state has some limited flexibility to approve other uses it deems appropriate and not threatening to senior rights.
The Colorado model is essentially used in Wyoming, Montana, New Mexico, Idaho, and Nevada; the California model in Oregon and Washington. There are various hybrids of both approaches in Arizona, Utah, Texas, and Alaska. In no state is “beneficial use” undefined or poorly understood. Nor does the federal government deliver any water from its reservoirs that would not be used for the specified purposes under those state laws. The Bureau does not regulate how states define “beneficial use,” nor should it. But the idea that there is no clear definition is either badly misinformed, or purposely disingenuous.
Either way, the Bureau ought to have a simple response to this petition – the recycle bin. In one sense, Coloradans might agree with its sentiment, because it decries California waste – to me that includes any use of water that isn’t theirs. Still, the petition represents no state, tribe or local government, utility, water provider, or other legitimate stakeholder. It ignores years of activity by the Upper Basin states to better conserve limited water resources, eliminate waste, track water more closely, quantify uses more accurately, and manage water systems to maximize all those competing priorities. They understand “beneficial use” perfectly.
