Water, Water Everywhere (Including 60 Minutes)

If wars in the 21st century will be fought over water, as this 60 Minutes segment begins, then Justice Mahlon Pitney is the Sun Tzu of the upcoming conflict. In his 1909 opinion in Meeker v. East Orange, New Jersey Chancellor Pitney (who later served on the United States Supreme Court) presaged the arms race that 60 Minutes presents between desperate farmers drilling progressively deeper wells because of severe drought conditions in California. Drawing on these underground aquifers risks a stark case of water depletion in the state, from which it may not recover.

An official from the U.S. Geological Survey gave an accurate recapitulation of California water law when she said that California law puts no limit on drilling and pumping, provided the water is put to a “beneficial use.” California defines agriculture as a per se beneficial use, which incentivizes farmers from planting “thirsty crops”, such as pistachios and raspberries, which need water all year. These incentives gives rise to an arms race where drillers are incentivized to drill ever deeper and pump more, knowing their neighbors are sure to do the same. So business is good for well-drillers like Steve Arthur, who recognized the irony of helping one farmer take water from his neighbor – knowing that he was also scheduled to drill that neighbor’s well.

With no courts to enforce water rights and a lax permitting scheme, California has a de facto groundwater regime that follows the English capture rule as laid out in Acton v. Blundell. This rule essentially says that whoever can capture the water first is the legal owner, such that any incidental burden to others was damnum absque injuria– loss without a legally cognizable claim. This doctrine is contrasted with the American reasonable use regime that finds its clearest articulation by Pitney in his Meeker decision. American reasonable use recognizes that the right to pump water “must be correlative and subject to the operation the maxim sic utere, etc., so that each landowner is restricted to a reasonable exercise of his own rights and a reasonable use of his own property, in view of the similar rights of others.” Abstractly, the maxim sic utere means only that one person should not use his property to harm another. But it takes on concrete meaning when it is used to stop an arms race that might make sense when the total demands on drilling are so low it is not worth while to put in a legal regime to control the conflict.

Under the reasonable use regime, in adjudicating the amount of water a farmer can pump, his needs are weighed against the needs of all others. Adopting this rule would help solve California’s problem because courts would be able to immediately limit over-drilling and set a common level for farmers’ drilling that would allow for sustainable aquifer use by all, without incentivizing overconsumption.

It is worth mentioning that the simpler Acton rule is not without its benefits. A clear rule allows farmers and well-drillers to operate without the uncertainty that comes from an evolving jurisprudence. Furthermore, the maligned arms race might lead to new technologies of extraction including a method of “tagging” water so that its owners would be able it to exclude others, turning the fugacious property into a resource that more akin to land. These technical developments could lead to a private calculus of conservation. Ironically, however valuable Meeker is in static technology, it does nothing to incentivize the creation of these new technologies that could make property rights more definite. The current statutory scheme, however, incorporates not the pure Acton rule, but only its worst aspect, overconsumption, without facilitating absolute property rights in water.

On balance therefore, the Meeker rule seems to be the next best thing. One compelling justification for this American reasonable use regime is that because the government has arrogated to itself fundamental ownership of all groundwater, and not allowed for private ownershup of the state’s 515 alluvial groundwater basins, the state ought behave as a trustee of the public when determining who gets the limited use rights in water. Just as the Takings Clause of the Fifth Amendment requires that private property should not be taken without just compensation, the public trust doctrine essentially stipulates that public property should not be given to private parties without just compensation back to the populace.

A public office is a public trust and on the above account, California has failed to discharge its responsibilities. Sensing its failure as a trustee, the California Legislature and Governor Jerry Brown have just enacted a set of remedial legislation that sets up another regulatory layer, with local water boards drawing up sustainability plans. The analysis of this legislation and the sustainability plans which are not required until the 2020s, is beyond the scope of this op-ed. But it is worth pointing out that this legislative scheme has foreclosed a powerful tool individuals have used to protect their rights – the courts. While many critique political conservatives and libertarians for being anti-environmental, here is an instructive example of how regulatory control leads to overconsumption and conservation is best promoted through private parties litigating in the courts to preserve private rights. Not every problem necessitates a legislative solution and by preempting the judicial decision-making, California has foreclosed a powerful remedy to groundwater depletion.