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3
Understanding the Institutional
Dimensions of an Environmental Problem
The complexity of the hydrological, geological, chemical, and eco-
logical factors described in Chapter 2 poses a tremendous management
challenge, but, in fact, these factors are only part of the picture. They are
joined and often exacerbated by an equally complex and conflicting maze
of political, social, economic, legal, administrative, and other institutional
factors. The technical complexities relate to defining the nature, extent,
remediations, and consequences of an environmental problem and the re-
sponses proposed. The institutional complexities affect problem awareness
and the acceptance and effectiveness of proposed responses. They take on
added significance if the level of technical understanding is uncertain.
Typically, it is for institutional (e.g., social and political) reasons that
some change in the environment is judged to be a problem rather than
merely a change. These same institutional factors will then influence the
choice of a response. Because institutional and scientific considerations are
entwined, responses must be based on an understanding of the complex
interactions that can occur between these two dimensions. The institutional
barriers often are more difficult to overcome than the technical problems.
In addition, the separation and fragmentation of institutional interests and
responsibilities make it hard to develop a coordinated strategy for water
use planning.
The term "institutions" is used in many ways and thus can be confusing.
At one level, "institutions" is used to mean agencies. However, this defini-
tion is too limited. The term "institutions" encompasses much more than
the few government bodies with responsibility for resource management
53
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54
IRRIGATION-INDUCED WATER QUALITY PROBLEMS
and enforcement of relevant laws. The concept also includes administrative
organizations, social customs, regulations, policies, and laws. Institutional
analysis must consider economic arrangements such as pricing policies and
constraints, subsidies, water marketing, water allocation mechanisms, and
combining surface and ground water management. It must take into ac-
count the potential of different tax schemes (incentives and disincentives),
rules, regulations, guidelines, and administrative interpretations, as well as
the creation of alternative institutional authorities.
This chapter addresses how institutional factors contribute to the cre-
ation and continuation of irrigation-induced water quality problems. It also
discusses how these institutional dimensions sometimes impede responses.
Although economic issues, social issues, organizational influences, legal
issues, and political issues are covered separately, in reality these influences
are intricately interrelated.
ECONOMIC FACTORS
Economic factors are a critical institutional issue to be considered when
attempting to understand the nature and consequences of irrigation-induced
water quality problems. One step in every problem-solving endeavor is
to assess the proposed solutions in light of their economic viability (see
Chapter 5~. However, it is equally important to understand the setting in a
broader economic sense-to understand historic economic influences and
current economic pressures.
Perhaps the most pervasive economic issue contributing to the creation
of irrigation-related water quality problems and affecting the choice and
success of solutions is the cost of water. The availability of water of ade-
quate quality, in sufficient amounts, and at an affordable price determines
the viability of any effort to settle or to produce crops on arid and semiarid
lands. Without water, such land can be almost worthless for farming (at
least as measured by the market). With water it is worth thousands of dol-
lars per acre. Building large reservoirs, transporting water long distances,
and distributing it over large areas are costly undertakings. Thus the true
costs of water supplied by large irrigation projects are generally too high
for farmers to pay without subsidies.
One traditional approach used to keep the price of water artificially
low has been to exclude the costs of a drainage system when an irrigation
project is first planned and built. Because drainage facilities are not needed
at the inception of a project, the costs of building them can be delayed
in the early phases of project proposal. This has the effect of making the
project appear to be much more economical than it would have appeared
if drainage costs had not been deferred.
Ignoring the costs of environmental degradation, overestimating crop
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THE INSTITUTIONAL DIMENSIONS
55
yields and prices, and underestimating construction and operation costs-
whether intentionally or not-also help reduce the apparent cost of irriga-
tion projects. In the West, however, even these strategies were inadequate
to ov~.roOmP. the economic realities Of irrigated agriculture. Water was still
~ ~ an, _, _~ ,^^ _ ,^ _ _ O O
inordinately expensive.
1b compensate, other subsidies were adopted. One was to eliminate
interest payments in computing the cost of irrigation water. Another was
to impose very loose repayment terms allowing the farmers' financial
condition to dictate how much they would actually pay.
The net effect of these subsidies is substantial. Farmers in the
North Platte Project in Nebraska and Wyoming annually pay an estimated
$0.22/acre/yr for water that would carry an unsubsidized price of $8.18
(U.S. Department of the Interior, 1988~. Irrigators in the Bonneville Unit
of the Central Utah Project contribute $17.84/acre/yr toward repayment;
the federal government's share is $306.40. And the amount of subsidies is
increasing with newer projects: irrigation waters from the Animas-LaPlata
Project in southwestern Colorado will sell for $40.60/acretyr although the
real cost is estimated at $673.47. Farmers in the Central Arizona Project
will pay $213.40/acre/yr for water that costs an estimated $542/acre/yr (U.S.
Department of the Interior, 1988~. (Table 3.1 provides other examples,
although it should be noted that these figures are not directly comparable
because they are calculated on a rate-per-acre-foot basis.)
Figures were compiled by the U.S. Bureau of Reclamation (USER)
at the request of Congress in 1988 to illustrate the range of the real
costs of water in the West. (All such estimates should be approached
cautiously because they can vary significantly depending on how interest is
incorporated. This can greatly change the degree, but not the direction, of
the subsidy.) According to these estimates, in 1986 western farmers received
an irrigation subsidy of about $534 million from the federal government,
for an average of $54/acre of irrigated land. The total annual subsidy of
California's Central Valley Project in 1986 was $135.4 million, about one-
fourth of the national total. The total value of the irrigation subsidy from
1902 through 1986 is roughly estimated to have been $9.8 billion (U.S.
Department of the Interior, 1988~.
Nationally over the past 10 years, an average of 38 percent of that
subsidized water was used to grow crops that the government considered
surplus, including cotton, rice, wheat, corn, oats, barley, sorghum, and
soybeans. In 1986 alone, farmers using USER water to irrigate surplus crops
received about $203 million in irrigation subsidies (U.S. Department of the
Interior, 1988~. This "double subsidy"-obtained when some producers
participate in commodity subsidy programs and receive subsidized irrigation
water is of particular concern (Moore and McGuckin, 1988~.
These subsidy policies contribute to three effects. First, they ensure
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56
IRRIGATION-INDUCED WATER QUALITY PROBLEMS
TABLE 3.1 Subsidized and Full Cost Prices per Acre-Foot of Water for
18 Reclamation Districts
District Subsidized Rate ($) "Full Cost" Rate ($)
Black Canyon, ID 1.4115.77
Coachella, CA 7.0026.27
Columbia Basin East, WA 4.1941.16
Elephant Butte, Not 6.4524.43
Farwell, NE 10.50135.50
Glenn-Colusa, CA 1.4617.85
Goleta, CA 59.24263.12
Goshen, WY 4.2222.96
Grand Valley, CO 1.1831.10
Imperial, CA 4.7511.00
Lower Yellowstone, MT 5.2834.62
Lugert-Altus, OK 18.58143.19
Milk River, MT 7.79119.13
Moon Lake, UT 1.757.04
Orov~lle-Tonasket, WA 11.4721.33
Truckee-Carson, NV 2.1933.46
Wellton Mohawk,AZ 4.8029.58
Westlands, CA 15.8067.56
NOTE: Subsidized rates and full cost rates were calculated according to section
203(a) of the Reclamation Reform Act of 1982. These calculations do not include
opportunity costs and thus are conservative.
SOURCE: U.S. Department of tl~e Interior, 1980.
that the projects are rarely paid for by farmers, because the USER sets
annual charges too low to recover the capital costs. In a given year it often
costs more just to operate most systems than the farmers pay for the water.
Second, they create an economy based on subsidized water, one that
may lack the financial resources and incentives to deal with the inevitable
problems that irrigated agriculture creates. The West has many marginal
irrigation projects supporting farmers whose economic existence is depen-
dent on water subsidies. Over time the dependency becomes fundamental
to local lifestyles, and there is an expectation of unending support. Such
expectations are capitalized in land values, and any change in the status
quo will inflict large costs on the farming community.
Third, they reduce the incentives that encourage farmers to use water
efficiently. The economic and legal factors determining water use in the
West have created an immense irony. Water is in many ways the most
valuable commodity in the arid West and the basis of much of its wealth.
Yet because it is sold at artificially low prices, farmers often treat water
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THE INSTITUTIONAL DIMENSIONS
57
as if it were a free commodity. Crops are overirrigated because that is
easier than managing the water carefully, and canals leak because it is not
economical to line or fix them.
Thus, the subsidization of irrigation water appears to be a major culprit
contributing to irrigation-induced water quality problems. The low cost of
water results in more water being used, it encourages farmers to cultivate
less desirable lands, and it leads to increased leaching from subsurface
flow. Current water use patterns also diminish the amount of fresh water
left in streams to dilute contaminants and carry them out to sea, and they
have stimulated the drainage of wetlands, with a concomitant loss of their
ecological functions and diversity. Water subsidies do bring well-known
benefits, particularly in the social realm, but it is increasingly important to
recognize the full scope of disadvantages as well.
A final economic reality that should be mentioned is the problem of
tight budgets. Federal, state, and local governments all are facing serious
financial constraints. Proposals to undertake expensive activities to build
new water development projects or to correct problems caused by existing
projects receive greater scrutiny now than in the past.
The difficult and important question of who will pay for whatever
actions are adopted also arises. Will it be the farmers, many of whom
have limited capability to pay for major new undertakings? Should they
pay, for instance, for new wildlife habitats or in-stream flows? Or will
some (or perhaps all) of the costs be underwritten by the state's and/or the
nation's taxpayers? It is not likely or reasonable that these regional costs
be assumed totally on a national scale. Technical solutions for irrigation-
induced problems may exist, but it will prove difficult to resolve who is to
pay for those solutions.
SOCIAL FACTORS
Social acceptability has proved to be an increasingly visible criterion
for addressing environmental concerns such as irrigation-induced water
quality problems. It is particularly important to recognize the fundamental
role that social issues play in setting the stage for both the creation of
irrigation-related problems and the choice of solutions.
The United States has used laws, policies, and economics to establish
an agricultural society in the West that depends on subsidized water. Any
change in rights will change the distribution of income, and the people who
have benefited from the original system will resist any attempts to change
it. This social dimension is well reflected by the political powers it creates
and the agencies that serve it. Together these forces create the laws and
regulations that preserve, reinforce, and expand the reliance on economic
subsidies.
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58
IRRIGATION-INDUCED WATER QUALITY PROBLEMS
The U.S. Bureau of Reclamation system was originally established with
the intention of promoting the small family farm. The Reclamation Act of
1902 originally limited the water available so that no farm could receive
water for more than 160 acres. This figure was revised to 320 acres, 160
acres each for husband and wife. The intent was to promote an equitable
distribution of social and economic benefits, but this limitation was never
rigorously enforced. More often than not, reclamation projects and the
economics of scale led to large farm holdings, and the wealth created was
concentrated in a small percentage of the population (Goodall and Sullivan,
1985~.
As agricultural practices changed, many irrigators avoided the 160-acre
limit through complicated trusts and rental agreements, and by registering
land in the names of different family members. Because of the complicated
mechanisms used to avoid the limit in many areas, it is difficult to say with
certainty what the average farm size is in many reclamation projects. But
the concept that the benefits of subsidized water are accruing largely to
small family farms is a myth. In California, for instance, corporate farms
owned by firms such as Southern Pacific, Chevron USA, Getty Oil, Shell
Oil, and Prudential Insurance are estimated to use more than two-thirds of
the state's agricultural water (Martin, 1989~.
The net effect of this situation is that, politically and socially, the recla-
mation system has created many farms throughout the West that probably
could not survive without the substantial subsidies they receive. This cadre
of farmers adds to the political pressures that resist changing the existing
system. And they have limited capacity to take on additional financial
burdens required to correct irrigation-induced water quality problems. At
the same time, a large portion of the subsidies goes not to small farmers
but to larger enterprises that probably could afford to pay more realistic
prices for their water supplies as well as the costs associated with water
quality improvement.
This subsidy system does not exist in a vacuum. The subsidies have to
be paid by someone. Some are financed from within the region; for instance,
municipalities and industries pay higher rates and end up supporting the
costs of new state or regional water projects so that farmers can continue
to receive low-cost supplies. The state taxpayer picks up other expenses.
Taxpayers outside the region also pay many of the subsidies. As the
nation adds other subsidies principally in the form of commodity price
supports the problems are exacerbated and become even more difficult to
solve. The dilemma created is that short-term benefits accrue primarily to
the agricultural sector (and perhaps to the public in the form of lower food
costs, although this has not been clearly demonstrated), while in the long
run the costs with respect to tax outlays and environmental degradation are
borne by those who may not have experienced the benefits.
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THE INS TI7IJTIONAL DIMENSIONS
59
High subsidy levels increasingly are being questioned. It is not only
the subsidies that people are questioning, but also the very use that is
being made of the water. For the population served by public supplies,
the average domestic per capita water use in western states is 143 gallons
per person per day, compared to 105 gallons in the rest of the country
(Solley et al., 1988~. Many of the West's new residents have brought with
them not only additional demands for the region's limited water supplies,
but also different perceptions about how the water can be used most
beneficially and treasured as a valuable commodity. Historically, most of
the West's water has gone to rural economic uses such as farming, ranching,
and mining. But the West- long romanticized for its rural frontiers is
becoming increasingly urban, and these urban residents often have different
ideas about water use. Nationally, 73.7 percent of the population lives in
urban areas, but in California the percentage is 91.3 and in Arizona, 83.8
(Statistical Abstract, 1988~.
Urban residents bring different values and priorities. They may be
more interested in using water to sustain their urban jobs, water their
lawns, and provide recreational opportunities than to irrigate crops (E1-
Ashry and Gibbons, 1986~. And to the extent that the existing water
allocation system allows water markets to determine how the water is
used, these urban users can often pay much more than rural users pay.
Industries and municipalities have indicated a willingness to pay hundreds
and, in some cases, thousands of dollars for water that costs farmers tens
of dollars. On a smaller scale, the increasing wealth of some segments
of society creates an increased demand for recreation, including wildlife
habitats, wild rivers, and streams for fishing.
The shift from a rural to an increasingly urban population is not
the only reason for the change in values that is occurring. There is a
greater recognition now of the costs to society in terms of ecological
change. Diminishing wildlife and waterfowl populations, the extinction of
plant and animal species, and the ever-shrinking availability of clean water
supplies are viewed as indicators of undesirable ecological changes. Many
citizens now place more emphasis on environmental protection, clean up,
and enhancement. For example, leaving water in the stream was once
considered tantamount to wasting it; most states did not consider in-stream
flow to be a beneficial water use. That is no longer the case. Keeping
water in the stream is seen as having a high value by many westerners, and
all western states now recognize some form of in-stream flow rights.
The increased growth in population and economic activity has affected
not only the quantity of water in the region's rivers but the quality of that
water as well. As the West has grown, so have waste-producing human
activities. The expansion of cropland and livestock operations, the growth
in industrial output, the increased amount of land cleared for residential
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60
IRRIGATION-INDUCED WATER QUALITY PROBLEMS
.-,
Society's values have changed with time, and many citizens now place more emphasis on
environmental protection. Although irrigation remains the largest water user in the West,
there is an increased demand for water for other, less tangible uses such as wildlife habitat,
wild rivers, and recreation.
CREDIT: Soil Conservation Service, D. Schuhart.
and commercial purposes-indeed almost all the activities associated with
this growth increase the amount of pollutants entering streams and rivers.
Society traditionally has used rivers and streams as pipelines to carry its
wastes, but this approach is increasingly inadequate as the amount of water
in the rivers and streams diminishes or where the waterways are rendered
unfit for human and other uses by uncontrolled pollution or incomplete
treatment.
Arid regions face an inherent dilemma-development consumes the
water needed to carry away resulting wastes, at the same time increasing
the amount of wastes it produces. Some of this pollution can be controlled,
but much cannot. The increasing loads of pollution will inevitably hasten
the deterioration of the region's scarce water resources.
The changing demographics, increasing income, and shift in values
that have caused these changes are likely to continue. And the resulting
changes in priorities, combined with a relatively inflexible water allocation
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THE INSTITUTIONAL DIMENSIONS
61
system and continually diminishing supplies of available water, will generate
increasing conflicts. There is no additional water, just more demand on the
limited supplies available.
AGENCIES AND ORGANIZATIONS
Another critical area to be considered in any problem-solving endeavor
is the influence of agencies and organizations, including both governmental
and nongovernmental bodies.
Organizational influences change over time to reflect the nation's
changes in priorities and values. Two decades ago, the USER was the
primary federal agency concerned with irrigated agriculture, and it was
primarily concerned with only one objective: assuring an abundant supply of
inexpensive water for farmers. Questions of environmental degradation and
the values of wildlife and in-stream flows generally were rarely considered
because society did not give these issues the high priority it does today.
Since then, however, agencies such as the U.S. Environmental Protec-
tion Agency have been created, and others like the U.S. Fish and Wildlife
Service (USFWS) have become much more involved in the health of the
environment on which wildlife depend. Similar changes have taken place at
the state and local level, and in most cases, this proliferation of regulatory
and management agencies has been matched by a proliferation of relevant
laws (Box 3.A), regulations, treaties, and court decisions.
A similar proliferation of organizations has taken place in the non-
governmental sector. Numerous public groups interested in some part of
the problem have come into existence, and their membership has grown
rapidly. Small and large associations also exist at the producer and business
level to attempt to protect their interests.
Many examples of overlapping agency jurisdictions exist, as do ex-
amples of areas where there are significant gaps in responsibilities. Water
delivery organizations are often separate from water drainage organizations.
The upper and lower reaches of the same stream may be the responsibility
of different institutions. There may be a dozen or more irrigation dis-
tricts within one county. Agencies and regulators concerned about public
health differ from those responsible for wildlife or water quality. Political
and agency boundaries often cross hydrological boundaries, making the
coordinated planning of water resources difficult. Most often, the agencies
responsible for the activities that caused a problem have no responsibilities,
or incentives, for considering or solving the dilemmas they have helped
create. In fact, it may be in the agency's best interest, or that of its clients,
to deny that the problem exists. Again, the result is often a conflict between
agencies with different mandates.
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62
IRRIGATION-INDUCED WATER QUALITY PROBLEMS
BOX 3.A Some Important Laws and Statutes Relevant to Activities in
California's San Josquin Valley
Federal Statutes:
Migratory Bird Treaty Act. This act prohibits the unlawful taking or
possession of any migratory bird in accordance with treaties signed by the
United States and the USSR (1976), Japan (1972), Mexico (1936), and Great
Britain (1916~. "joking" is defined as the act or attempt to "pursue, hunt,
shoot, capture, collect, or kill . . ." (16 USC Section 715n). Exceptions
require a permit from the secretary of the interior. This act traditionally
has been viewed as a hunting violations law, but recent cases have used
a broader interpretation of unintentional nonhunting takings. The USFWS
has primary responsibility for enforcing this statute.
Endangered Species Act. This act is an attempt to address the global
problem of the increasing number of species faced with extinction. It
requires all U.S. agency actions to be carried out in a manner that will
not jeopardize the continued existence of an endangered species. It also
requires the secretary of the interior to consult with other federal agencies
with jurisdiction over an endangered species. In recent years, the process for
listing critical habitats for endangered species has become more complex.
Federal Water Pollution Control Act. This 1972 legislation attempts to
ensure clean water (the "swimmable, fishable" goal) for the nation. The
Clean Water Act (CWA) of 1977 is a revision of this legislation. The
act greatly broadened the role of the Environmental Protection Agency by
directing it to set effluent standards and regulate the amount of a pollutant
that can be discharged based on its environmental effects. Although the
CWA is the strongest federal water pollution control act on record, it is
not directly applicable to the situation in the San Joaquin Valley because
irrigation return flows from agriculture are classified as nonpoint pollution,
which was consciously excluded from the act. However, this does not prevent
individual states from instituting stricter agricultural effluent standards. The
Environmental Protection Agency has primary responsibility for this statute.
California Statutes:
Porter-Colo~e Water Quality Control Act. This major legislation, effec-
tive since 1970, lays out California's enforcement and remedies for state
water law. Its goal is fo protect the health, safety, and welfare of state
residents and to protect water quality for the use and enjoyment of the
State's people. The act established the State Water Resources Control Board
|and nine regional boards that are responsible for achieving these goals. It
granted them broad authority to regulate hazardous waste discharges and
to formulate and implement water quality control plans. These plans must
consider a variety of beneficial uses of water, regional economic factors, and
Environmental characteristics. Regional boards are empowered to confer
Continued
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TlIE INSTITUTIONAL DIMENSIONS
BOX 3.A Continued
civil fines, restraining orders, or injunctions to regulate any parlor discharging
waste to state waters without the proper permit.
Tonic Pits Cleanup Act. This act became effective in 1984 in response to
the growing problem of water pollution caused by discharges of hazardous
waste on land. Hazardous waste is designated by "its toxicity, mobility, or
presence in a land disposal environment, or its ability to accumulate in
plants or animals" (California Health and Safety Code, 25208(b)~. Ibe act
prohibits discharge of any liquid hazardous waste into a surface impoundment
after January 1, 1989, unless specific equipment is installed and the site
is monitored carefully. Hazardous discharges are prohibited to surface
impoundments after June 30, 1988, if the impoundment is within one-half
mile upgradient from a potential drinking water source. Regional water
quality control boards inspect all surface impoundments at least once a year
and dischargers failing to meet requirements are fined.
The Safe Drinking Water and Tonic Enforcement Act. This 1986 act,
known as Proposition 65, is perhaps the strictest regulation of toxic substances
in drinking water in the nation. It requires all consumer products containing
chemicals known to cause cancer or reproductive harm to carry warnings, and
prohibits businesses from knowingly discharging listed chemicals into drinking
water sources. The governor is required to update and publish annually a
list of chemicals known to cause cancer or reproductive tox~ciW; among the
substances on the list are benzene, lead, vinyl chloride, chromium, arsenic,
asbestos, DDT, and PCBs. Other substances are expected to be added
in the future. The act also provides penalties for violators, with the goal
of shifting the cost of hazardous waste cleanup from the taxpayer to the
offending parties. This act, however, only applies to businesses with more
than 10 employees, and public agencies such as irrigation districts, state and
federal agencies, municipalities, and the military are exempt. Hence it does
not apply to most irrigation-related water quality problems. A proposal to
extend the law to cover public agencies has been proposed.
SOURCE: After Letey et al., 1986.
63
As an example, the 1982 discovery of high selenium levels and de-
formed waterfowl at Kesterson National Wildlife Refuge (NWR) focused
attention on the conflicts in the missions of two federal agencies, both
within the U.S. Department of the Interior. The USER operates from a
long-standing congressional mandate to promote settlement in the West
by providing water for agriculture. The USFWS has many responsibilities,
including the protection and maintenance of migratory bird populations.
But the Kesterson issue transcended the interests of these agencies, forcing
them into an uneasy partnership.
This complex organizational backdrop reflects an equally complex
legal structure affecting the use of water in western states. Over the
years, western states have developed a body of water law that in many
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64
IRRIGATION-INDUCED WATER QUALITY PROBLEMS
The structures and functions of the nation's resource management agencies have changed
over time to reflect changes in priorities and values. Agencies with sometimes conflicting
missions, such as the U.S. Bureau of Reclamation and the U.S. Fish and Wildlife Service,
are facing increased pressure to work cooperatively to ensure that the varied needs of
society are balanced. Here, a refuge manager at the Deer Fiat National Wildlife Refuge,
located within the bureau's Boise Project, monitors geese nesting on the Snake River.
CREDIT: U.S. Bureau of Reclamation, J. D. Roder~ck.
ways contributes to the types of problems discovered at Kesterson NWR
and elsewhere. For instance, the legal system of water rights and water
allocation in western states discourages water conservation, because the
person saving it often is not allowed, for a complicated set of reasons, to
sell any water that is saved. Thus farmers often perceive that conserving
water will result in their losing the right to it, and they perceive an incentive
to use as much as possible to establish a right to a larger amount.
Another dilemma that involves both organizational and legal influences
relates to the allocation of water. In many basins, the legal system has
already allocated more water than is available in most years. For instance,
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THE INSTITUTIONAL DIMENSIONS
65
the courts have allocated 15 million acre-feet of water from the Colorado
River annually to the seven basin states, and by treaty Mexico is entitled
to 1.5 million acre-feet. Despite these legal demands for 16.5 million acre-
feet, the river's average flow is about 14 million acre-feet (Weatherford
and Jacoby, 1975~. It is becoming increasingly clear that legislatures may
provide exemptions from the laws of man, but not from the laws of nature.
LEGAL ISSUES
The overall legal and regulatory milieu shapes both the causes of
irrigation-related problems and the acceptability of solutions. It is not
entirely possible to separate legal issues from other institutional issues
because laws define the operating parameters of government agencies,
regulate the use and transferability of water resources, and are intertwined
with many other fundamental institutional issues. These issues range from
rights of appropriators to water under the prior appropriation doctrine to
contract rights of parties who have contracted to receive water from an
irrigation district, and from rights of irrigation districts under contracts
with the USBR to rights of members of the public under the public trust
doctrine.
The legal issues involved in solving irrigation-induced water quality
problems are complex, and they are closely tied to the organization issues
(Table 3.2~. All organizations are governed by sets of legal rules that
confer authority to act and that may give them standing to intervene in
the formulation and enforcement of any solutions aimed at addressing
irrigation-related issues.
One often-discussed response to the San Joaquin Valley's problem
is reducing the consumptive use of water by particular irrigators. The
"reasonable use" doctrine of California provides one possible vehicle for
reducing water use by irrigators. The reasonable use doctrine suggests that
an irrigator can only use as much water as is "reasonably" necessary to
grow his crops. One unanswered question, however, is whether this device
has the breadth to reach and regulate the quality of water discharged by
individual irrigators. Other questions that would need to be considered
are whether individuals downstream would have standing to raise the issue,
whether the California Department of Water Resources could enforce the
doctrine, and whether the Water Resources Control Board could enforce it
by making existing permits contingent on reduced discharge. Another legal
issue would be whether this approach would constitute an unconstitutional
taking of property if the permit conditions in effect put farmers out of
business or measurably decreased their profit.
One legal obstacle to drainage reduction based on legislation that
imposes across-the-board reductions is that it may have greatly disparate
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66
IRRIGATION-INDUCED WATER QUALITY PROBLEMS
TABLE 3.2 Agencies Active in the San Joaquin Valley Example and Their
General Legal Foundations
Agency*
General Legal Responsibilities
U.S. Bureau of Reclamation
California Department of Water
Resources
Imgation and drainage districts
in the Central Valley
State of California Water
Resources Control Board
Department of Health Services
U.S. Environmental Protection
Agency
Resource management agencies such
as the Wildlife Service and the
California Department of Fish
and Game
Federal reclamation law
California water law
State and local laws and regulations
controlling the operations of
irrigation districts
State water quality laws
State public health laws
Federal environmental laws, Safe
Drinking Water Act, Clean Water
Act, National Environmental
Policy Act
State wildlife protection laws,
Endangered Species Act, and
Migratory Bird Treaty Act
*The allocation of responsibilities for enforcement of these various laws is
extremely complex. The water quality and quantity and public health laws in
general are enforced by the State of California through its administrative
agencies. The reclamation law is enforced by the United States or the
irrigation districts depending on which party is seeking relief.
impacts, giving rise to claims of denial of equal protection under the law.
Existing contracts may allocate quantities of water equally among irrigators,
but the exact quantum of noxious drainage per user is very difficult to
determine. This raises complex legal issues such as who should bear the
burden of proof as to individual impact on the system, the degree of the
burden of proof required, and the power of the legislature to penalize some
for the pollution of others.
Another legal issue raised by existing water law doctrine is that the
prevailing state law concept of "beneficial use" may work directly against
programs attempting to encourage a reduction in water use. Under state
law, beneficial use is the measure and limit of water rights. Those who
voluntarily reduce their water consumption may be reducing the size of
their contractual or property right in the water.
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THE INS TITUTION~ DIMENSIONS
67
Another basic legal issue is whether to encourage the adoption of
stringent water quality standards at the downstream end of a drainage
system and simply allow these standards to dictate all conservation behavior
upstream. For instance, in the San Joaquin Valley, water quality standards
for selenium, boron, and salinity downstream of the districts could be
determined in a public forum by state and regional boards, and these
standards could in effect set the farmers' use of irrigation water. If across-
the-board regulations are adopted regarding quality, the application of
those standards is likely to be challenged in court.
Another complicating factor is that agricultural return flows do not
typically fall under regulations dealing with point source pollution. In the
long term, however, the irony may be that as a result of not being subject to
the regulations, agricultural interests are ineligible for federal grants under
the Clean Water Act, should such grants become available.
An alternative to the adoption of broad regulatory standards or at-
tempted enforcement of broad water law doctrines such as reasonable use
would be to provide economic incentives to irrigators to use less water.
However, federal, state, and local laws may contain provisions that affect
this solution. First, internal district allocation rules may provide a deterrent
to water conservation because water is generally contracted on a district-
wide basis, and individual farmers who cut back on consumption will simply
see the water made available to other users in the district without receiving
any compensation for their conservation. Furthermore, the USER policy of
not allowing carry-over storage from year to year would deter conservation
because the water saved would be lost if not used within the irrigation
season. Finally, there is the very difficult question of who actually owns
the water to be sold. Is it the federal government, the district, or the
farmer? Added to this, of course, is the role of the "public trust" doctrine,
wherein the public at large may hold an interest, as yet not fully specified,
in some quantity of water for public purposes. The answer is probably that
ownership is a partnership.
Constraints on water transfers also exist in federal reclamation law.
However, the degree of enforcement of those constraints often changes
with changes in the administration in Washington, D.C. During the years
of the Carter administration, for instance, USER policy suggested that the
title to water rights under federal projects, if not fully vested in the federal
government, certainly bore the burden of a federal trust that limited usage
to irrigation; in particular, it suggested that the use must be on appurtenant
lands. More recently the view has changed to suggest more flexibility in
usage. Unfortunately for the proponents of free transfers, the right to use
of the water is based on long-term contracts, which are made not with
individual farmers but with water districts. Such contracts would need to
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IRRIGATION-INDUCED WATER QUALITY PROBLEMS
be reevaluated and renegotiated if individual farmers were to be given full
economic incentives to transfer their water rights.
In addition, state law vests substantial regulatory control in state
regulatory agencies. No water transfer can be completed unless it can
be demonstrated that it does not injure other water rights holders. Thus,
although the water contracts are between a federal agency and a private
individual, movement of water and shifts from ground to surface water may
affect other rights holders, and the state therefore becomes involved. Also,
this restriction against causing injury is being reinterpreted as applying to
the community as a whole. Regional economic and social effects will have
to be considered before some transfers will be allowed.
Within a district the issue is somewhat complicated by the contractual
nature of farmers' rights and the internal rules for water allocation. Nev-
ertheless, the issue of impairment of other water rights inevitably arises
when major water rights transfers are sought. In addition to protecting
the other water users, the agency before whom a transfer is sought must
evaluate the potential injury to wildlife and other entities reflecting the
public trust interests inherent in water usage in California. At first glance,
it would seem that the public trust would be overwhelmingly served by
reducing water consumption. It is unclear, however, whether the decrease
of the public trust values in one area can be balanced against benefits such
as a reduction in trace element contamination. Furthermore, any transfers
that reduced wetlands would have to include mitigation by creating new
wetlands elsewhere. These mitigation efforts could certainly be a cost to
the potential transfer.
From both a legal and economic standpoint, new legal developments in
California that purport to make certain water conveyance systems more akin
to common carriers and to allow water consumers to use unused conveyance
space are encouraging. However, it remains to be seen whether there is
sufficient space for conveying transferred water. Likewise, it remains to be
seen how reclamation law would permit the conveyed water to be priced.
If it were made available to farmers at irrigation prices and if the farmers,
after taking delivery, were to make the water available to municipal or
industrial users, contracts would likely have to be written that clearly stated
who was to receive the profit the USER, the water district, or individual
farmers. If the transfer were to be considered to create a supplemental
benefit for the district, provisions of the Reclamation Reform Act of 1982
might come into play and lead to legal entanglements. If the government
were no worse off, and the transfer were from one existing contractor to
another, the transition might be exempt under existing USER regulations.
To attempt a transfer and to run the gauntlet of the various federal and
state laws and regulations require money for attorneys' fees and experts. As
experience is gained, the process of negotiating each transfer will become
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THE INSTITUTIONAL DIMENSIONS
69
cheaper, but the overall costs may still be quite high. Whether the benefits
of a sale of a portion of one's water to a potential customer will justify the
expense to the average farmer is not clear, nor is it clear whether smaller
districts will make such an effort based on economic incentives alone.
There is also a vague requirement in both federal law and in federal
water contracts that defines the permissible regional limits on the use of
water. To the degree that these requirements are imbedded in congressional
acts, it will take an act of Congress to change them. If they are set forward
in existing federal contracts, then they can be changed at the agency level.
Changing a federal contract creates no serious legal concerns when
the act of the federal agency is essentially nondiscretionary or makes no
basic change in a federal project. However, a federal employee's decision
to exercise discretion to permit major water transfers from one location to
another would likely trigger the operation of the National Environmental
Policy Act and would require the preparation either of a document finding
no significant impact or, in some cases, of a full environmental impact
statement.
The development of an environmental impact statement would un-
doubtedly lead to the realization that transferring major quantities of water
out of one basin and into another, or even simply changing the use of water
within a basin, could have substantial impacts on endangered species and
many forms of wildlife, particularly waterfowl.
There are also practical legal problems associated with the task of
transferring water rights. One problem might arise from the lack of tech-
nically competent people available to address the legal issues involved.
A case that involves a transfer of any large quantity of water from one
location to another also presents immense burden-of-proof issues. The
burden of proof will no doubt be on the person seeking the transfer, who
will face two tasks. The first is to convince the federal government, the
state, the irrigation district, and fellow farmers that he or she has the legal
right to sell the water. Although formidable, this is mainly a legal issue.
The second, more difficult task is to prove that the actions are consistent
with the public interest. What constitutes the public interest is a question
of incredibly complex dimensions. No doubt, there is public interest in
seeing water moved to higher-value uses, but there is also public interest
in promoting rural, cultural, and environmental values.
Proving that the transfer is consistent with the public interest is a
substantial task if the farmer intends to decrease his surface use and increase
ground water pumping. It can involve extensive use of computer models
to demonstrate that the cone of depression caused by the increased use
will not create problems for other wells and will not interfere with surface
water drains. In addition, even if the impairment issues are resolved, there
is still the issue of whether the transfer will provide benefits by reducing
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70
IRRIGATION-INDUCED WATER QUALITY PROBLEMS
pollution. In many cases it will be extraordinarily difficult to show that the
source of the pollution will even be affected by an individual transfer, much
less abated in some way.
Finally, the cadre of participants in a water transfer will be extensive.
Many special interest groups will intervene to show that their proposals will
be more beneficial to the public interest than the transfer will be. Persons
seeking tougher downstream water quality standards may feel threatened
by what they perceive as a temporary solution when what is needed to
support the public interest is more rigorous river protection standards.
Water quality and water quantity issues have been treated separately
throughout U.S. history. California is no exception to this rule. This is
perhaps best manifested in the fact that federal water allocation contracts
have been found to be nondiscretionary exceptions to the National Environ-
mental Policy Act (see discussion above) and note the fact that California
has two distinct agencies that address these issues (see Table 3.2~. Hearings
are currently pending on the relevant stream systems, and their outcome
may well have a great deal of impact.
Even though this section has emphasized obstacles to drainage water
cleanup, there are various positive signals as well. The USER is facing
a changing mission as the need for new construction diminishes and the
need for more efficient management emerges. They have taken a position
in favor of water marketing that bodes well for that possibility should
other problems be resolved. In addition, California law has moved in the
direction of allowing economic incentives for conservation practices.
Finally, institutional analysis should not totally reject the possibility of
"top-down standardization." In response to excessive salinity pollution in
Mexico, the Colorado River basin states have been very effective in setting
salinity standards for the Colorado River and, with the help of federal
money, reducing salinity levels at the border between Mexico and the
United States. This concept of treating drainage from a federal irrigation
project as a shared federal and state responsibility may well be a model
that could operate in this arena.
POLITICAL FACTORS
Finally, irrigation-related problems and any proposed solutions must
be evaluated in terms of political realities. Although this is a difficult task
because the political process is rarely clear-cut, it is essential to the process
of choosing appropriate solutions. In the West, after all, water is a political
issue that generates unusual passion.
The political setting has played perhaps the most critical role in creating
situations conducive to irrigation-related problems. The decision to irrigate
the West was first and foremost a political one: policymakers decided to
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THE INSTITUTIONAL DIMENSIONS
71
promote the settlement of the West and "make the deserts bloom." It was
a political decision clearly designed to promote social goals, and it was
translated into law via the Reclamation Act of 1902. It occurred at a time
when there was great belief in the ability of technology and engineering
to overcome almost any obstacle that nature might put in the way. It
created in the West a social and economic system that cannot survive
without substantial support, and it is politics that provide that support.
In short, the political system created many of the problems now being
faced, it created a structure that prevented them from being addressed
effectively early on, and it will ultimately determine what solutions will be
implemented (Worster, 1985~.
The importance of political influences both past and present-is il-
lustrated clearly in the San Joaquin Valley. There, as elsewhere in the West,
agriculture flourished because political forces exerted pressure in favor of
subsidized irrigation development. This, in turn, produced abundant crops,
created jobs, and fostered a strong agriculturally based economy. In turn,
these benefits built an even stronger political base of support. The region's
political, economic, and social ties to irrigated agriculture give its people a
great stake in ongoing discussions about how to solve the problems caused
by the accumulation of salts and harmful trace elements. For example, agri-
cultural interests were reluctant to have the San Joaquin Valley Drainage
Program (SJVDP) discuss any options perceived to be against agriculture,
such as the issue of retiring particularly problematic lands from farming.
Political influences from another sphere environmental interests in the
San Francisco Bay area-are similarly evident; this view surfaces most visi-
bly in the pressures that prevented the SJVDP from seriously considering
ocean disposal as a possible alternative even though many scientists argue
that this is a credible option.
Thus political, social, economic, institutional, and legal factors have all
contributed substantially to the irrigation-induced water quality problems
identified in the San Joaquin Valley and elsewhere in the West. These
factors will strongly influence the choice of potential solutions. In many
ways, the solutions to the problems the nation faces are hindered less
by technical or scientific uncertainties than by social, economic, and legal
confrontations. Thus, unless political, economic, social, and institutional
means can be brought to bear on the process, it will prove impossible to
solve irrigation-induced water quality problems.
CONCLUSIONS
Many factors affect society's ability to respond to irrigation-induced
water quality problems. Often, institutional and scientific considerations
are entwined, and effective programs to solve such problems require an
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72
IRRIGATION-INDUCED WATER QUALITY PROBLEMS
understanding of the complex Interactions that occur between social and
physical components. The physical changes and the environmental and
social impacts associated with Irrigation and its return flow In arid and
semiarid regions can be exacerbated or ameliorated by the institutional
setting- which involves a maze of sometimes competing interest groups,
agencies, laws, and mandates. It is a setting shaped by underlying societal
values. However, this Institutional separation and fragmentation of interests
and responsibilities have made it difficult to develop a coordinated strategr
for water resources planning.
Can irrigated agriculture be sustained Indefinitely or Is it always
doomed to fail because of salin~zation or related problems? Certainly
there are abundant examples of failure throughout history. The key to
making sustainable production physically possible is maintaining a high
level of management and investment to remove and dispose of accumu-
lating salts. The critical difference Is the perspective of the time scale
involved. As long as the goals are short term and water management Is
the primary concern, irrigation is doomed to fail. However, if the planning
Is truly long term and includes a focus on the management of dissolved
chemicals, and if it is judged to be in the national interest to pay both
the economic and environmental costs, then it should be possible to create
a sustainable irrigated agriculture. The critical issue of time frame may
be reflected In the choice of technology used to combat irrigation-induced
water quality problems, but the underlying decision on strategy is set by
political, economic, and social influences.
Solutions to satisfy all the parties affected by irrigation-~nduced water
quality problems will not be easy to find. Difficult trade-offs and compro-
m~ses will have to be made. The protection of water and land resources
provides the foundation for future growth and development. Agriculture
is only one of many interests that need a dependable supply of unpolluted
water. As populations grow and patterns of water use change, institutions
will need to respond. The issue of Irrigation drainage water Is important,
but it is only part of a broader issue: that of managing water resources for
the long-term public good. Water quantity and water quality can no longer
be addressed separately.
REFERENCES
El-Ashry, M. 1:, and D. C. Gibbons. 1986. Doubled Waters: New Policies for Managing
Water in the American West. Study 6. World Resources Institute, Washington, D.C.
October.
Goodall, HI. R., and J. D. Sullivan. 1985. Water system entities in California: social and
environmental effects. Pp. 71-102 in Special Water Districts: Challenge for the Future.
J. N. Carbridge, Jr., ed. Natural Resources Law Center, University of Colorado,
Boulder.
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THE INSTITUTIONAL DIMENSIONS
73
Letey, J., C. Roberts, M. Penberth, and C. Vasek. 1986. An Agricultural Dilemma:
Drainage Water and Toxics Disposal in the San Joaquin Valley. Special Publication
3319. Agricultural Experiment Station. University of California, Riverside. Division of
Agriculture and Natural Resources.
Martin, G. 1989. At the public water trough, The World, San Francisco Sunday Examiner
and Chronicle, January 29, p. 12.
Moore, M. R., and C. A. McGuckin. 1988. Program Crop Production and Federal Irrigation
Water. Reprinted from Agricultural Resources: Cropland, Water, and Consenration
Situation and Outlook Report. AR-12. U.S. Department of Agriculture, Economic
~ Research Service, Washington, D.C.
Solley, W. B., C. F. Merk, and R. R. Pierce. 1988. Estimated use of water in the United
States in 1985. Circular 1004. U.S. Geological Survey, Reston, Virginia.
Statistical Abstract. 1988. U.S. Government Printing Office, Washington, D.C.
U.S. Department of the Interior. 1980. Draft Environmental Impact Statement (DEIS),
Acreage Limitation, Westwide Report Appendix G (Full Cost Pricing Option), Table
2.
U.S. Department of the Interior. 1988. H.R. 1443. Irrigation Subsidy Legislation: Questions
from the Subcommittee on Water and Power Resources of the Committee on Interior
and Insular Affairs.
Weatherford, G. D., and G. C. Jacoby. 1975. Impact of energy development on the law of
the Colorado River. Natural Resources Journal 15~1), 171-213.
Worster, D. 1985. Rivers of Empire: Water, Aridity, and the Growth of the American West.
Pantheon Books, New York.
Representative terms from entire chapter:
institutional dimensions
