The rhetoric of water reform resistance: a response to Hobbs' critique of Long's Peak.

Greg Hobbs is an unusual talent. Both practitioner and scholar,(1) he is also an able and entertaining speaker, even if you do not agree with his perspective.(2)

Unfortunately, Hobbs' critique of the Long's Peak report(3) is not up to his usual standards. Instead, it is a hyperbolic and bombastic attack on a well-reasoned, moderate call for evolutionary change in water allocation, a system largely grounded in the ideas of the Nineteenth Century. For some reason, defenders of the water law status quo seem to feel that mischaracterization and overstatement is a better defense to calls for reform(4) than reasoned discussion of the deficiencies of a system of water allocation which shortchanges latecomers, instream uses, and Indian tribes.(5)

Hobbs' attempt to indict the Long's Peak report as advocacy of "an imaginary Western wilderness" and "a one-dimensional argument for the exercise of federal agency power"(6) is easily refuted by a reading of the report itself, which the editors have been good enough to reprint in these pages.(7) Nowhere in the report's 47 recommendations is there anything remotely resembling a call for more wilderness or new federal authority over water management. Instead, the Long's Peak report is an appeal to the federal government to exercise authority it already possesses to increase efficiency, fairness, and environmental sensitivity in water use decision making. Hobbs does recognize the report's "timely message" about the need for efficiency, environmental protection, community participation, and market principles.(8) But his critique largely ignores these necessary reforms in an effort to characterize the report as a "strident preservationism."(9)

I want to use this space to attempt to identify the nature of Hobbs' objections to the Long's Peak report,(10) for his criticism reflects the deep divisions in the West over water use as we near the twenty-first century. He indicts the Long's Peak report for being anti-use, anti-storage, and anti-local.(11) Because it is necessary to understand what he means by each of these allegations in order to comprehend the nature of the divide over Western water, the first three sections of this response consider these charges in turn. Section IV then examines Hobbs' suggestion that the Fifth Amendment's takings clause may bar efforts to modernize Western water. Section V concludes by explaining why Hobbs' views, although dominant throughout this century, might prove to be too expensive to prevail in the next.

I. ANTI-USE

Western water law is one of the two remaining legacies of the prior appropriation ("first in time, first in right") principles which dominated Western settlement in the nineteenth century,(12) the other being the General Mining Law.(13) Unlike the mining law, which is a federal statute, Western water is governed largely by state appropriation systems.(14) But like the mining law, water uses obtain property rights.(15) Only those who use water "beneficially" obtain water rights,(16) and their property rights are defeasible if they waste water.(17) Because it is the basis and measure of a water right, the definition of beneficial use is the key concept of Western water law.

Traditionally, beneficial uses required diversions from the stream in order to put others on notice of their claim to water, but modem recording systems obviated the need for physical diversion. Consequently, over the last generation most Western states amended their definitions of beneficial use to include instream uses. For example, Colorado did so in 1973,(18) and Hobbs indicates that there are now some 8,000 stream miles "protected" under that law.(19) But because these instream rights could have a priority date no earlier than 1973, on overappropriated streams--of which there are many in Colorado--instream rights with late priority dates supply precious little "protection" to instream uses. And because diversionary water rights with early priority dates are inheritable and passed on from generation to generation, the disadvantaged position of instream uses is not likely to improve in the future. True, as Hobbs points out, for the past seven years the Colorado Water Conservation Board has had statutory authority to purchase or receive by donation (but not condemn) senior water rights for conversion to instream flow rights.(20) However, purchases will prove to be extremely expensive to the taxpayers, and donations are likely to be infrequent. Imagine the state of the environment if the Environmental Protection Agency had to purchase or acquire by donation pollution rights from polluters. The prior appropriation, in short, relegates instream uses to a virtually permanent disadvantaged position.

It is this system that Hobbs seeks to defend in his diatribe against the Long's Peak report. But he has clearly picked the wrong target. There is not one word in the report suggesting the need to overthrow the prior appropriation system. In fact, among the report's general principles is the following:

Where a transition from old to new values demands reallocation of

water from existing supplies, the equities of people with existing

uses established under lawful prior policies should be respected.(21) This seems to me to be a clear statement that the Long's Peak report recognized prior appropriation as the operative principle of Western water law and sought only its adaptation to the imperatives of the next century.

Perhaps Hobbs simply misunderstood the pragmatic nature of the Long's Peak recommendations. However, I think his overreaction is one that other defenders of diversionary water uses would share. The thinking seems to be: better to savage calls for moderate reform than to squarely face some of the inefficiencies and injustices in the current system of allocating Western water. For example, Hobbs' attempts to depict the Long's Peak report as a call for Western riparianism,(22) despite the principle quoted above. Not only does he misunderstand riparianism as it is practiced in the East,(23) but he overstates the nature of the "legal severance" by which riparian rights ceased to exist on Western public.(24) It is true that, as a result of this severance, most Western water is allocated through state prior appropriation system, but some Western states do recognize some riparian rights,(25) and federal and indian reserved and regulatory rights co-exist with state-granted rights.(26) The Long's Peak report simply recognizes these realities by calling for federal land managers to exercise their existing authorities to protect instream flows, especially through expenditures of federal funds and conditioning federal approvals.(27)

Hobbs is right to claim that the chief problem of Western water is one of scarcity, although his attempt to characterize prior appropriation as doctrine of sustainability(28) turns the latter concept on its head. Prior appropriation certainly has not sustained streamflows and instream uses in the arid West.(29) Waste of water, nominally prohibited by the prior appropriation doctrine, is rampant Westwide.(30) Instream ecological uses, which were well established (if not legally recognized) before any appropriator diverted a drop of water, are not the prime cause of water scarcity; it is instead the inefficiencies countenanced by the prior appropriation doctrine and its relegation of instream uses to a perpetual position of disadvantage which are the true causes of water scarcity in the West.

II. ANTI-STORAGE

Hobbs' real beef with Long's Peak is that the report is antistorage. Although it contains no statements opposing new storage projects, the report does contain some cautions about new storage in recommendation 30:

Economics will dramatically limit the development of new water

supplies. New projects should be planned and authorized by Congress

only to meet the highest priority needs. The Administration

should treat environmental quality as equivalent to regional economic

development in applying the Principles and Standards. Modifications

to existing projects should be considered only after the

existing project has been reevaluated in light of new needs and

water conservation objectives. Reallocation of existing supplies

should be preferred as an alternative to new storage.(31) Hobbs uses the last sentence of this recommendation to excoriate the entire report for advancing an anti-storage bias. For Hobbs, the answer to the West's water scarcity lies in new water projects.(32) However, water storage projects were a product of an era during which the federal government saw fit to subsidize Western water use with projects like Colorado's Big-Thompson project, which Hobbs considers to be the epitome of wise water management, including the gold medal trout fishery downstream.(33) According to Hobbs, the Big-Thompson project is a reflection of the fact that "[w]ater follows the shovel and the city council"; he ignores the fact that the federal government bought the shovel, and that local sponsors contributed little more than arranging longterm repayment contracts which reimbursed the federal treasury only a fraction of project costs at below-market interest rates.(34) As my good friend Jim Huffman would remind Hobbs, it was federal money that gave us Western dams,(35) and any account that omits the fact that national taxpayers subsidized Western storage for most of this century is incomplete and misleading.(36)

Hobbs suggests that any reallocation of existing federal storage must be preceded by feasibility and cost studies,(37) ignoring the fact that such studies seldom preceded project construction. More study is an old canard that beneficiaries of the status quo often invoke to resist change.(38) Nothing in the Long's Peak report is inconsistent with studying reallocation costs, so long as we also study the benefits as well as the costs of not changing the status quo. Indeed, a careful reading of recommendation 30 confirms this proposition.(39)

Let us be clear that Long's Peak did not advocate reallocation where vested rights are involved. Its recommendations were largely directed at federal agencies, such as the Bureau of Reclamation, the Corps of Engineers, and the Federal Energy Regulatory Commission, where they possess administrative discretion over water project operations or the issuance of water contracts and hydroelectric license conditions affecting streamflows.(40)

Hobbs' attempts to erect the prior appropriation system as an example of multiple use principles,(41) like his attempt to characterize prior appropriation as a doctrine of sustainability,(42) badly mischaracterizes the operation of Western water law. Gifford Pinchot's multiple use paradigm on the public lands--which emphasized scientific planning by disinterested government experts who would manage resources with a great deal of administrative discretion to produce "the greatest good for the greatest number over the long run"(43)--bears little or no resemblance to how water is allocated in the West. The prior appropriation doctrine features private decision making, deemphasizes government discretion, and leaves almost no role for scientific planning in allocating rights to use water.(44) Whatever uses are made of return flows after an appropriator diverts are better characterized as incidental uses, rather than multiple uses. In truth, Western Water is a dominant use system whose basic tenets are antithetical to the multiple use system championed by Pinchot.(45)

The reclamation projects which serve the prior appropriation doctrine by storing water for states to allocate, however, could operate to fulfill multiple use purposes, including instream uses. But too often in the past, they have not(46) Grand Coulee Dain, for example, could be drafted to supply the spring and summer flows necessary to supply Columbia Basin salmon a biologically sound transportation corridor to the ocean. Glen Canyon Dam could be operated to enhance fish and wildlife and recreation downstream on the Colorado River. It is, in fact, balanced, multiple use of such projects that the Long's Peak report recommended.(47) But those recommendations earn Hobbs' enmity; he apparently considers multiple use of storage projects to amount to "strident preservationism." Fortunately, his views are anachronistic ones, and the Clinton Administration is proceeding with plans to transform the Bureau of Reclamation from a dam construction agency into a modem water management agency operating under true multiple use principles.(48) Hobbs may not like it, but the era of large-scale water project construction is at an end.

III. ANTI-LOCAL

Hobbs' third major charge against the Long's Peak report is that it is anti-local. He claims that the report seeks less state and local control over water and advocates more federal regulation. Such a result, he asserts, would be "undemocratic" because it would ignore local law and customs.(49)

One response to this hyperbole might be to question the wisdom of relying on local custom where the custom is, as is commonplace throughout the arid West, to waste water.(50) Antiwaste provisions in state laws cannot eliminate waste where they are not enforced by local officials, and where citizens have no authority to challenge wasteful practices in court. But the real response to Hobbs' attack lies in a careful reading of the Long's Peak recommendations, no fewer than seven of which emphasize state and local responsibilities.(51) Recommendation 20, for example, suggests that federal water management agencies delegate or share regulatory responsibilities with the government most closely affected by program decisions.(52) Recommendation 37 advocates expanding state authority to allow states to protect outstanding river segments from hydropower development.(53) Hobbs' allegation that Long's Peak is biased against state and local planning and regulation is refuted by the text of the report itself.

IV. THE "TAKING" OF WATER RIGHTS

Hobbs concludes his missive by attacking the Long's Peak report for failing to address a series of questions about whether federal environmental laws can alter the nature of an appropriator's property interest in water.(54) These are interesting questions that will ultimately be decided in court, on the basis of concrete facts and real people. A report on national water policy is hardly the proper forum to attempt to resolve the questions Hobbs wants answered. One senses his disappointment in the report may be due to its failure to assist him in a future brief he may be considering.

Let me address a few of the issues Hobbs raises, however. First, while state law does define the nature of state water rights, state law certainly has not defined the scope, nature, and existence of federal property rights in water.(55) Federal reserved rights are federally created and defined and, while the federal government has consented to be joined in state comprehensive stream adjudications,(56) it has not consented to allow state law to define the nature of federal water rights.(57) Second, although the Clean Water Act and the Endangered Species Act do contain admonitions for the federal and state governments to work cooperatively to resolve water rights issues,(58) they do not promise federal acquiescence to state water law where the result would, say, produce a violation of water quality standards or adverse modification to critical habitat of endangered species.(59) Hobbs has written about these issues in the past, but he has misinterpreted the federal intent to work cooperatively with states as federal intent to defer to state law.(60)

Takings defenses to assertions of federal reserved rights have been unavailable because of the early priority dates that characterize reserved rights.(61) Those early priority dates will not insulate federal water rights under the Clean Water and the Endangered Species Acts, but successful takings defenses are nevertheless unlikely for several reasons. First, the vested private property right in water under state law is much more limited than Hobbs is willing to concede. Suppose an irrigator has a right to divert 100 cubic feet per second (cfs) of water, but his crops consume only thirty cfs, and another ten cfs is lost through "unavoidable" waste such as carriage losses. Because the prior appropriation doctrine has always limited the scope of the water right by the concepts of beneficial use and waste,(62) a takings claim cannot begin to arise until a regulatory requirement restrains more than sixty cfs of the diversion.

Second, restrictions greater than sixty cfs may be insulated from takings claims by state constitutional and statutory proclamations of the public nature of water,(63) or by judicial application of the public trust doctrine to water diversions.(64) Thus, by definition private property rights in water have always been more contingent than land rights and may be circumscribed by public rights without paying constitutional compensation.(65) As Professor Sax observed a few years ago:

The roots of private property in water have simply never been

deep enough to vest in water users a compensable right to diminish

lakes and rivers or to destroy the marine life within them. Water is

not like a pocket watch or a piece of furniture, which an owner

may destroy with impunity. The rights of use in water, however

longstanding, should never be confused with more personal, more

fully owned, property. Far from being a sudden and unpredictable

change in the definition of property, recognition of the right of the

state to protect its water resources is only a restatement of a familiar

and oft-stated public prerogative.(66)

Third, Hobbs misreads the Supreme Court's Lucas case if he thinks that case means that a Clean Water or Endangered Species Act limitation on a state water right is a taking. For one thing, the "categorical rule" established by Lucas applies only to complete wipeouts of all value,(67) and it is very unlikely that a restriction imposed to fulfill a federal environmental statute would limit the entirety of a state water right. For another, in the past, the Supreme Court has upheld police power limitations that allegedly diminished the property owner value by as much as ninety percent.(68) Lucas does nothing to overturn these precedents.

This is not the place for an extended analysis of state water rights and the taking clause.(69) I wish only to suggest that, notwithstanding Hobbs' assertions to the contrary, Lucas does little or nothing to clarify whether and under what circumstances federal environmental requirements might unconstitutionally take state water rights.(70)

V. WESTERN WATER LAW IN THE NEXT MILLENNIUM

For nearly a century, water law in the West has had two overriding characteristics: (1) federally subsidized storage projects, and (2) state administration favoring water diverters and leaving instream uses in a permanently disadvantaged position. The federal projects that created water for the states to allocate constituted an enormous contribution of the national taxpayers to Western development. The extent of this federal gratuity is curious, since for years there was little federal direction as to how this water should be allocated. Hobbs infers that the federal government decided to fund these projects with no strings attached in order to reward local planning and defer to local custom.(71) Whatever the motivation, the era of subsidies is clearly over.(72) Not only can the federal taxpayers no longer afford to subsidize Western water development, federal priorities now include instream concerns associated with water quality restoration and endangered species preservation. The Long's Peak report merely reflects these changed priorities in its recommendations concerning changing project operations and asserting federal public land authority to maintain streamflows.(73)

Change will come more slowly on the state level, where the forces which have controlled state water allocation systems remain entrenched. It is for this reason that Hobbs and other resisters of water reform want to characterize reports like Long's Peak as attempts to federalize water law.(74) They assume that if water law and policy is thought of a matter left to the states, the historic hegemony of water developers in the administration of water will remain unchanged. They may be right. Certainly the control of state legislators, administrators, and courts by the agricultural and municipal development lobbies has been as complete as the fabled "iron triangle" which supplied the sum with federal subsidies for so long.(75)

But it is not entirely unrealistic to think that, just as the resisters to water reform have lost control of the federal appropriations projects, their grip on state water allocation may be loosening. For one thing, municipal and agricultural diverters are not always allies, as was evident in the debates over the Central Valley Improvement Act,(76) where the municipalities embraced change and agriculture unsuccessfully resisted it.(77) For another, the economies of Western states grow less dependent on extractive uses of natural resources with each passing year, and Westerners increasingly seek to preserve and restore instream uses. It may become difficult for the resisters of change to defend underenforcement of the waste doctrine--which currently countenances grossly inefficient irrigation practices(78)--or extensive neglect of beneficial use requirements, producing illegal "water spreading"--allowing diverters to change the place of use without state approval.(79) Widespread public understanding of these abuses may succeed in producing badly needed reforms on the state level, such as (1) increasing public involvement and accountability in water use decision making, (2) ensuring that water allocation is predicated on plans that account for both water quantity and water quality and which recognize surface and groundwater interaction, and (3) giving citizens the authority to enforce state water laws in court.(80)

Ultimately, Western water law will change because it will prove too expensive not to change. The current system of water allocation suffers from poor enforcement, little citizen involvement, and virtually eschews comprehensive planning entirely. A poignant example of the unwillingness plan concerns the Columbia River. The Columbia's principal tributary, the Snake River, has several species of salmon listed for protection under the Endangered Species Act.(81) Despite the fact that one of the principal causes for the decline of the Columbia Basin salmon runs is lack of sufficient mainstem flows to transport juvenile salmon to the ocean,(82) none of the Northwest states has permanently banned new diversions from the Columbia River and its principal tributaries.(83) For example, Oregon is considering applications to divert some 550 cfs from the mainstem Columbia for activities associated with expanding the heavily subsidized potato processing industry, an industry which has produced substantial ground and surface water pollution and widespread mining of acquifers.(84)

The irrationality of Western Water allocation may be best captured in a proposal by the federal Bonneville Power Administration (BPA) to spend between $250,000 and $300,000 purchasing water rights to 30,000 acre-feet of water to benefit the endangered Snake River salmon, a cost of roughly $10 per acre-foot, or $3,960 per cubic foot per second (cfs).(85) At the same time, the State of Oregon in 1993 issued satisfactory technical reports on applications for new water rights in the Snake River Basin totalling twenty-two cfs plus 150 acre-feet.(86) These new water rights will not cost the applicants anything, but apparently they will soon be able to sell their rights back to BPA for about $88,000.(87) The masterminds of the savings and loan fiasco, after serving their prison sentences, may wish to turn their attention to the water rights arena.

Saving the Columbia Basin salmon runs will require, at a minimum, a new commitment to interstate planning and a new vigilance concerning implementation of anti-waste and beneficial use provisions. States wishing to avoid the prospect of losing control over water use decision making to Endangered Species Act proceedings will amend their water codes and embolden their administrators accordingly. The federal government may be able to encourage this transition, but real change must come from within the states.

The Long's Peak report ought to be seen not merely as an appeal for federal water reform(88) but also as a clarion call for the states to take action to prepare for the inevitable changes they will confront in the next century. Hobbs' critique is simply a disguised plea for maintenance of a status quo which has (1) imposed a permanently disadvantaged position on instream users, (2) excluded widespread segments of the public from water allocation decision making, and (3) gives little or no consideration to planning for impending shortages. This is a system that, despite Hobbs' efforts, will collapse of its own inefficiency if it is not reformed. (1.) See, e.g., Gregory J. Hobbs, Jr., "Ripeness" Gets New Emphasis: Environmental Litigation, 13 Nat'l L.J., Sept. 2, 1991, p.32 col. 1.; Gregory J. Hobbs, Jr., Ripeness, Exhaustion and Administrative Practice, 5 Nat'l Res. & Envt. 10 (Fall 1990); Gregory J. Hobbs, Jr. & Bennett W. Raley, Water Rights Protection in Water Quality Law, 60 U. Colo. L Rev. 841 (1989); Gregory J. Hobbs, Jr., Legislative and Judicial Oversight of Rulemaking, 18 Colo. Law. 245 (1989); Gregory J. Hobbs, Jr. & Bennett W. Raley, Water Quality Versus Water Quantity., A Delicate Balance, 34 Rocky Mtn. Min. L. Inst. 24-1 (1988) [hereinafter Quality vs. Quantity]; Gregory J. Hobbs, Jr., Federal Environmental Law and State Water Law: Accommodation or Preemption, 1 Nat'l Resources & Envt. 23 (Winter 1986); Gregory J. Hobbs, Jr., Discovery and Judicial Review in State Administrative Practice, 10 Colo. Law. 249 (1981). (2.) Hobbs' response to Charles Wilkinson's "eulogy" to prior appropriation, 21 Envtl. L. v (1991), was an impromptu reply to a dinner speech that was doubtlessly prepared overnight and delivered the next morning. Despite these time pressures, his reply will be remembered by those who heard it as one of the most witty and provocative speeches ever given at Lewis and Clark. See Gregory J. Hobbs, Jr., The Reluctant Marriage. The Next Generation (A Response to Charles Wilkinson), 21 Envtl. L. 1087 (1991). (3.) See Gregory J. Hobbs, Jr., Ecological Integrity, New Western Myth (A Critique of the Long's Peak Report), 24 Envtl. L. 157 (1994). (4.) For a similar example of exaggeration and distortion, see James L. Huffman, A Fish Out of Water: The Public Trust in a Constitutional Democracy, 19 Envtl. L. 527, 568-72 (1989). (5.) For a concise summary of the shortcomings of the current system of water allocation in the West, see Charles F. Wilkinson, Aldo Leopold and Western Water Law: Thinking Perpendicular to the Prior Appropriation Doctrine, 24 Land and Water L. Rev. 1 (1989). (6.) Hobbs, supra note 3, at 157. (7.) See 24 Envtl. L 125 (1994). (8.) Hobbs, supra note 3, at 158. (9.) Id. (10.) I have little comment on Senator Hatfield's article, The Long's Peak Working Group and River Basin Trusts, 24 Envtl. L. 146 (1994), except to note my appreciation for his concern with Western water reform and to hope his concept of establishing river basin "trusts" becomes a vehicle to speed the inevitable reform process. For a similar proposal, grounded heavily on use of federal hydropower revenues by river basin "councils," see John M. Volkman & Kai N. Lee, Within the Hundredth Meridian: Western States and Their River Basins in a Time of Transition, 59 Colo. L. Rev. 551, 567-76 (1989). However, I do think Senator Hatfield's faith in the Northwest Power Planning Council, id. at 153, is unwarranted, given the Council's inability to restructure Columbia Basin hydroelectric project operations to avoid Endangered Species Act listings of several Columbia Basin salmon runs, despite a clear expression of Congress to protect and restore Columbia salmon runs many years ago in the 1980 Northwest Power Act. See Michael C. Blumm and Andy Simrim, The Unraveling of the Parity Promise: Hydropower, Salmon and Endangered Species in the Columbia Basin, 21 Envtl. L. 657, 711-13 (1991). (11.) Hobbs, supra note 3, at 158. (12.) Charles Wilkinson has characterized the antiquated rules of Western resource allocation as the "lords of yesterday." See his Crossing the Next Meridian: Land, Water, and the Future of the American West 3-27 (1992). (13.) 30 U.S.C. [subsections] 2247. See Wilkinson, supra note 12, at 28-76. See also John D. Leshy, The Mining Law: A Study in Perpetual Motion (1986). (14.) See generally 6 Water and Water Rights (R. Beck ed. 1991) (surveying state water laws). (15.) See 2 id. [sections] 12.02. (16.) See id. [subsections] 12.03(c)(2), 14.03(c)(4)(A). (17.) See id. [subsections] 12.03(c)(2), 17.03(d). Water rights may also be lost through abandonment and forfeiture. See id. [subsections] 17.03(a), (b). (18.) Colo. Rev. Stat. [subsections] 37-92-102(3), 37-92-103(3), (4), (10) (1973), upheld against a constitutional attack by the Colorado Supreme Court in Colorado River Water Cons. Dist. v. Colorado Water Cons. Bd., 594 P.2d 570 (Colo. 1979). (19.) Hobbs, supra note 3, at 164. (20.) Id. at 164-65. Unfortunately, the Colorado legislature has appropriated no funds to purchase water rights. However, the Nature Conservancy recently donated a water right to the Water Conservation Board, which will soon go to water court to be changed to an instream flow right. Letter from Larry MacDonnell to author (Jan. 3, 1994). (21.) America's Waters: A New Era of Sustainability: Report of the Long's Peak Working Group on National Water Policy (Natural Resources Law Center, University of Colorado School of Law ed., 1992) 6, reprinted in this volume of Environmental Law, 24 Envtl. L. 132 [hereinafter Long's Peak Report]. (22.) Hobbs, supra note 3, at 161. (23.) Hobbs claims that the doctrine of natural or continuous flow characterizes riparian law when in reality the natural flow doctrine was supplanted by "reasonable use" principles over a century ago. See Morton J. Horowitz, The Transformation of American Law, 1820-60 at 3442 (1977). On riparianism, see 1 Water and Water Rights, supra note 14, chs. 6-9. (24.) See Hobbs, supra note 3, at 162. (25.) See 1 Water and Water Rights, supra note 14, ch. 8. (26.) See generally Michael C. Blumm, Unconventional Waters. The Quiet Resolution in Federal and Tribal Minimum Streamflows, 19 Ecology L.Q. 445 (1992). (27.) See generally Teresa Rice, Beyond Reserved Rights: Water Resource Protection for the Public Lands, 28 Idaho L. Rev. 715 (1991-92). (28.) Hobbs, supra note 3, at 162-64. (29.) See, e.g., Wilkinson, supra note 12, at 264-65 (citing depletion of the Navajo, Truckee, Colorado, Snake, Madison, Gallatin, Beaverhead, Bitteroot, Bighorn, Big Hole, and San Joaquin Rivers). (30.) See id. at 260-62; George W. Pring & Karen A. Tomb, License To Waste. Legal Barriers to Conservation and Efficient Use of Water in the West, 25 Rocky Mtn. Min. L. Inst. 25-1 (1979); Steven J. Shupe, Waste in Western Water Law: A Blueprint for Change, 61 Or. L. Rev. 483 (1982). (31.) Long's Peak Report, supra note 21, 24 Envtl. L. 139. (32.) Hobbs, supra note 3, at 159-60, 165. (33.) Id. at 159-60. (34.) See, e.g., Marc Reisner, Cadillac Desert: The American West and Its Disappearing Water, 500-01 (1986); Donald Worster, Rivers of Empire: Water, Aridity, and the Growth of the American West 176-81, 185, 237-39, 281 (1985). (35.) See the Clear the Air column allegedly written to Professor Huffman by Prior Appropriation himself, 21 Envtl. L. 2253 (1991). Huffman would, of course, also blame all the maladies in the West on socialist government intervention. See his article cited in note 4. (36.) See Reisner, supra note 34, at 319-43; Worster, Supra note 34, at 262-85. (37.) Hobbs, supra note 3, at 161. (38.) Perhaps the quintessential example of employing studies to delay taking effective remedial action concerns the Columbia River salmon where for years dam operators managed to maintain the status quo by studying the reasons for declining salmon runs. See, e.g., F. Lorraine Bodi, FERC's Mid-Columbia Proceeding Ten Years and Still Counting, 16 Envtl. L. 555 (1986). Demo that things have not changed much since Ms. Bodi wrote is a December 1, 1993 request by a dam operator to reopen a FERC proceeding to admit into evidence a draft recovery plan for Snake River salmon The operator wants a reconsideration of juvenile fish bypass system and spill requirements imposed by a FERC administrative law judge in Public Utility Dist. No. 2 of Grant County, Washington, 58 F.E.R.C. [paragraph] 63,022 (1992). See Motion of Public Utility Dist. No. 2 of Grant County Washington to Reopen the Record (Docket No. E9569-003, Dec. 1, 1993). As Ms. Bodi's article illustrates, a coalition of federal, state, and tribal agencies has been attempting (so far only partly successfully) to secure the bypass system and spill since 1976. Bodi, supra, at 561. (39.) See text accompanying note 31. (40.) See, e.g., Recommendations Nos. 8, 13, 19, 20, 22, 23, 32, 34, 36, 41, 42, 45, 47, Long's Peak Report, supra note 21, 24 Envtl. L. 135-38, 14041, 143-44. (41.) Hobbs, supra note 3, at 162. (42.) See supra note 28 and accompanying text. (43.) See Wilkinson, supra note 12, at 127-31. (44.) See Wilkinson, supra note 5, at 17-19, 22-28. (45.) Hobbs also misleads when he invokes John Wesley Powell to support his arguments for storage. Hobbs, supra note 3, at 161. Powell advocated self-governing, self-financing Watersheds, where storage, water use, and land use would be ascertained and constrained by a Watershed's own resources. Powell would almost certainly oppose the large storage projects which Hobbs touts because they could not be financed by the Watershed, an inherent limitation which gave his vision stability and sustainability, and one which Western Water developers rejected long ago. See Volkman & Lee, supra note 10, at 553-56. (46.) In this respect, however, water projects have been no bigger a failure than federal land management, where the multiple use paradigm has produced dominant, commodity-oriented uses and segregated landscapes. See Michael C. Blumm, Public Choice Theory and the Public Lands: Why Multiple Use Failed, 18 Harv. Envtl. L. Rev. no. 2 (forthcoming 1994). (47.) See, e.g., Recommendation 11, Long's Peak Report, supra note 21, 24 Envtl. L. 136, cited by Hobbs, supra note 3, at 161 (calling for fish and wildlife protection on federal lands and at federal and federally-licensed water projects "on an equal basis with other primary project purposes"). (48.) See, e.g., Western States Water no. 1016 (Nov. 5, 1993) (discussing the Bureau of Reclamation's Blueprint for Reform, which aims to transform the Bureau "from a civil works construction agency into a preeminent water management agency"); Tom Kenworthy, "Bureau of Reclamation to See Change," The Oregonian, A10, Nov. 2, 1993 (noting that "Congress is no longer willing to authorize the kind of massive hydroelectric and irrigation projects that sustained the agency for decades . . . ."). (49.) Hobbs, supra note 3, at 165. (50.) See sources cited in note 30, supra. (51.) See Recommendations 19-21, 34-37, 44(g), (j), (p), 47, Long's Peak Report, supra note 21, 24 Envtl. L. at 138, 141, 143-44. (52.) Id. at 138. (53.) Id. at 141. (54.) Hobbs, supra note 3, at 167. (55.) See 4 Water and Water Rights, supra note 14, ch. 37. (56.) Id. [sections] 37.04(a)(1). (57.) Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 571 (1983) (state courts must apply federal law to the interpret federal reserved rights). (58.) 33 U.S.C. [sections] 1251(g) (Clean Water Act); 16 U.S.C. [sections] 1531(c)(2) (Endangered Species Act). (59.) See, e.g., Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 513 (10th Cir. 1985) ([sections] 101(g) of the Clean Water Act is only a "general policy statement" cautioning that the Act should not interfere any more than necessary with state water management"). (60.) Hobbs & Raley, Quality vs. Quantity, supra note 1, at 24-40 to 24-64. (61.) See generally 4 Water & Water Rights, supra note 14, [subsections] 37.02(b), 37.03(b). (62.) See supra notes 16-17 and accompanying text. (63.) For a detailed chart of such proclamations in the Western states, see 2 Water and Water Rights, supra note 14, [sections] 12.01 at 85-90. (64.) The most famous public trust case in the Water law context is the California Supreme Court decision in the Mono Lake case. Nat'l Audubon Soc'y v. Superior Court, 33 Cal. 3d 419, 658 P.2d 709, 189 Cal. Rptr. 346, cert. denied, 464 U.S. 977 (1983). But the doctrine has spread to other Western states as well. See generally Symposium on the Public Trust and the Waters of the American West, 19 Envtl. L. 425-735 (1989); 4 Water and Water Rights, supra note 14, [sections] 30.02. (65.) See Joseph L. Sax, The Constitution, Property Rights and the Future of Water Law, 61 Cow. L. Rev. 257, 264-67 (1990). For an analysis of the historical roots of the public right in Water, see 4 Water and Water Rights, supra note 14, ch. 29. (66.) Joseph L. Sax, The Limits of Private Rights in Public Waters, 19 Envtl. L. 473, 482 (1989). (67.) Lucas v. South Carolina Coastal Council, 112 S. Ct 2886, 2894 (1992) conceding that total wipeouts are "relatively rare"). (68.) See Hadacheck v. Sebastian 239 U.S. 394, 408-09 (1915) (prohibiting operation of a brickyard, diminishing the value of the property 9096); Euclid v. Ambler Realty, 239 U.S. 365, 384 (1926) (zoning ordinance causing a diminution of value of 75%); Miller v. Schoene, 276 U.S. 272 (1928) (state may require cut-of cedar trees, despite no finding of a nuisance). (69.) See, e.g., Sax, supra note 65; 4 Water and Water Rights, supra note 14, [sections] 33.03. (70.) For more on Lucas, see A Colloquium on Lucas, 23 Envtl. L. 869-932 (1993); Symposium on Lucas, 45 Stan. L. Rev. 1369-1455 (1993); Glenn P. Sugameli, Takings Issues in Light of Lucas v. South Carolina Coastal Council: A Decision Full of Sound and Fury Signifying Nothing 12, VA. Envtl. L. Rev. 439 (1993); John A Humbach, "Taking" the Imperial Judiciary Seriously Segmenting Property Interests and Judicial Revision of Legislative Judgments, 42 Cath. U.L Rev. 771 (1993). (71.) Hobbs, supra note 3, at 159-60, 165. (72.) See sources cited in note 48, supra. (73.) See, e.g., Recommendations 11, 22-25, 27, 30-31, 36, 40-41, 45, 47, Long's Peak Report, supra note 21, 24 Envtl. L. 136, 138-42, 144. (74.) Hobbs, supra note 3, at 157, 161, 166. (75.) See, e.g., Daniel McCool, Command of the Waters: Iron Triangles, Federal Water Development, and Indian Water (1987). (76.) Pub. L. No. 102-574 , [subsections] 3400 et seq., 106 Stat. 470. (77.) See Philip A. Davis, Water Bill Heads to Bush s Desk Over Farm Interest Protests, 50 Cong. Quart. Weekly Rep. 3150 (Oct. 10, 1992); Harrison C. Dunning, Confronting the Environmental Legacy of Irrigated Agriculture of the West The Case of the Central Valley Project, 23 Envtl. L. 943, 960-69 (1993). (78.) See, e.g., Waterwatch of Oregon, New Directions for Oregon Water Policy 13-14 (1993) (discussing waste in the Deschutes River Basin and concluding that "waste water use is rampant in Oregon"). (79.) See Waterwatch of Oregon, for Oregon's Future--Water Marketing in Perspective 6-7 (1993). (80.) A bill that would have accomplished these objectives, Senate Bill 1163, was considered by the 1991 Oregon Legislature but not enacted. See Joseph R. Kaufman, An Analysis of Developing Instream Water Rights in Oregon, 28 Williamette L. Rev. 285, 287-89, 309-32 (1992). (81.) The Snake River sockeye are listed as "endangered" under the Act, 56 Fed. Reg. 58,619 (1991) (codified at 50 C.F.R. [sections] 17.11), while the Snake River spring/summer chinook and fall chinook have been listed as "threatened," 57 Fed. Reg. 14,653 (1992) (codified at 50 C.F.R. [sections] 17.11). See John M. Volkman & Willis S. McConnaha Through A Glass Darky: Columbia River Salmon, the Endangered Species Act, and Adaptive Management, 23 Envtl. L. 1249 (1993). (82.) See Blumm & Simrin, supra note 10, at 702-13; Michael C. Blumm, Saving Idaho's Salmon. A History of Failure and a Dubious Future, 28 Idaho L. Rev. 667, 683-713 (1991-92). (83.) See Memorandum from John Volkman to Northwest Power Planning Council Members (Dec. 17, 1992) (nothing that while Washington, Oregon, and Idaho all issued temporary moratoria on certain Columbia Basin diversions, significant loopholes existed in each state: (1) Washington grandfathered diversion applications filed before December 20, 1991 and exempted all water rights for the Bureau of Reclamations's Columbia Basin Project, (2) Oregon grandfathered permit applications filed before July 17, 1992 (which amounts to 878 applications), including one by the state's Department of Agriculture for over 3.2 million acre-feet of water "for future economic development"; and (3) although Idaho imposed an indefinite moratorium on diversions from the mainstem Snake River, the state did so only because of prolonged drought conditions, not to protect salmon specifically). (84.) See generally Columbia Basin Inst., Value Added and Subtracted: The Processed Potato Industry in the Mid-Columbia Basin (1993). In foregone hydropower alone, the cost of these diversions is $4 million annually. Id. at 54. (85.) See Petition of Waterwatch of Oregon to Withdraw the Columbia River, its Tributaries, and All Hydraulically Connected Groundwater 7 (Jan. 7, 1994). (86.) Id. (87.) Id. (88.) See Harrison C. Dunning, Long's Peak and Beyond, 4 Rivers 153, 154 (1993) (noting that about half of the report's 17 recommendations for action during the first 100 days of the Clinton Administration received some favorable federal response during that time frame).

Michael C. Blumm, Professor of Law, Northwestern School of Law of Lewis and Clark College. Member, Long's Peak Working Group. I thank Larry MacDonnell, Karen Russell, John Volkman, and Charles Wilkinson for helpful comments on a draft of this paper. This essay is dedicated to Tom and Audrey Simmons, whose brainchild, Waterwatch of Oregon, is pioneering new approaches to water management in many state and in the Pacific Northwest.