With a megadrought draining water reserves in the West, states are looking for alternatives to handle water rights, many of which were set more than 100 years ago when water supplies were far more abundant.
Back then, just posting a sign next to a water diversion was enough to be considered a right, one which could still be honored now. But the climate crisis is now straining those rights. There just isn’t enough water in California to satisfy what’s been allotted on paper.
For years, debate has raged in California about the best way to fix the water rights system for life in the modern era. Many of the senior water rights held in the state were set before 1914 when the permit system was established and when mining was big business.
“It’s an old water system that many perceive isn’t set up to deal with current climatic and hydraulic conditions,” Nathan Metcalf, a water rights attorney for California law firm Hanson Bridgett, told CNN. “It’s just not really set up to deal with climate change and the changing needs for water both from an environmental standpoint, and then there’s also the rub between agriculture and municipal.”
Recognizing the dour effect of climate change on the state’s hydrology, Democrats in California’s Senate have proposed using $7.5 billion in state and federal funds to “build a climate-resilient water system.”
Of those funds, $1.5 billion would be used to buy land with senior water rights from holders willing to sell them voluntarily in prioritized waters. The Democrats argue “fundamental changes” to the state’s water system are “needed to realign demand, supply, and the flexibility of the system.”
The proposal, which has yet to work its way through the legislature, would look to “retire water use incrementally from multiple water uses in a basin and across wide geographies” which would help provide clean drinking water while also improving fish habitats and wildlife refuge conditions.
“The problem with trying to regulate the senior water rights is that it’s a property interest, so you always run the risk of a takings claim by taking that property,” Metcalf said.
A takings claim could be brought by property owners against the government if it seizes private property for public use. Owners could also make a takings claim if regulations go too far in restricting their use of the land.
But Metcalf said there could be situations where it’s mutually beneficial for a property owner to cede his or her water rights.
“If it’s economically advantageous for both the farmer and the state to purchase those water rights to put to another use, I think that’s a possibility,” Metcalf said. “I could also see certain agricultural sectors being opposed to that because you never know when or how you’re going to use that water right in the future.”
Metcalf said the government could simply buy senior water rights, which might be an easier option than trying to regulate those rights, which often leads to years of litigation.
https://www.cnn.com/2022/07/10/us/west-water-crisis-property-rights-climate/index.html
https://m.youtube.com/watch?v=d605rM0U3x0
Ever notice the words over build is never mentioned about any of these drought situations? Property tax has a real blinding effect on the resources as long as the tax money keeps rolling in.