Growth Management and Western Water Law: From Urban Oases to Archipelagos

By A. Dan Tarlock* and Sarah B. Van de Wetering

Hastings West-Northwest Journal of Environmental Law and Policy

Winter, 1999

5 Hastings W.-N.W. J. Env. L. & Pol'y 163

* Professor of Law, Chicago-Kent College of Law. A.B. 1962, LL.B. 1965, Stanford University.

Managing Editor, Chronicle of Community, Missoula, Montana. B.S. 1984, Colorado State

University, J.D. 1988, University of Colorado. Co-author with MARC REISNER, OVERTAPPED

OASIS: REFORM OR REVOLUTION FOR WESTERN WATER (1990). Formerly Sarah F.

Bates.

TEXT:

[*163] I. Introduction

The West is in another boom cycle n1 and all projections indicate that this unique region will continue

to capture a substantial share of the country's population growth well into the next century. n2

Western states grew by about 32 percent in the past twenty-five years, compared with 19 percent in

the rest of the nation. n3 From 1990 to 1995, ten of the nation's fifty fastest growing counties

(including the fastest) were in one state, Colorado. n4 This boom cycle is producing different kinds

of growth patterns compared to past cycles because the current explosive growth is relatively less

dependent on federal support and new infra-structure development, much less dependent on raw

commodity production and much more broadly distributed geographically than previous booms.

Until World War II, the federal government viewed the West, with the exception of the Pacific

Coast, as a region that required federal subsidies to attract and retain a sustainable population base.

n5 Today, however, the West is growing for the very reasons people were originally deterred from

settlement of the region -- its harsh climate [*164] and rugged, often bleak, non-European

landscape. The "New West's" "commodities" include its climate, mountain and desert wilderness

areas, scenery, free-flowing rivers and open spaces, combined with the public and private

infrastructure to support what millions perceive as a high quality of life. n6

The West is no longer an Eastern and European colony. n7 It has become a classic example of a

modern, if not post-modern, globally integrated, service, information and manufacturing economy. n8

The energy "crisis" boom and bust of the 1970s and early 1980s has been replaced by a much more

diverse, less raw-commodity, production economy. Technology makes it possible for both young

and old to locate where they choose, unconstrained by the traditional link between a large urban

center and economic opportunity or life support. The draw of scenic rural areas is illustrated by the

fact that from the 1970s to the 1990s counties with federally designated wilderness areas grew two

to three times faster than all other counties in the nation, rural or urban. n9 A recent survey of

demographic trends concluded that nearly a quarter of interior West in-migration may be

retirement-based and that there will be an even larger retirement boom in the region beginning in the

next two decades as baby boomers retire. n10

Perhaps the most surprising datum revealed by a recent examination of the rate and location of

western growth is that growth has occurred most rapidly in the booming interior West (between the

Sierra Nevada mountains and the Great Plains of eastern Colorado and New Mexico). n11

California and Texas have, and will continue to have, the greatest population increases due both to

births and in-migration. After World War II, cold and restless easterners and midwesterners fled to

California, Oregon and Washington. In the 1970s, however, the pattern began to change. Large

numbers of people from the West Coast, along with continued out-migration from the Upper Great

Plains, Midwest and East, moved into the interior West, particularly to Arizona, New Mexico, and

southern Nevada. In the next twenty-five years, the fastest growing states in terms of percentage

growth rates are expected to be California, New Mexico, Texas, Arizona, Washington, Wyoming,

Utah, and Idaho. In short, the New West will be simultaneously more urban, and more widely

dispersed, than it has been in the past.

Contrary to myth makers, n12 the West has long been the most urbanized region of the country.

Westerners may love their 4 X 4 vehicles, (complete with latte holders), but 86 percent of them live

in urban areas. More importantly, [*165] the new residents of the interior West have dispersed

throughout much of the region, with the exception of the Great Plains, into a series of "urban

archipelagos" or areas of high population density surrounded by large rural areas with sparse and

declining populations. In contrast to the older, and initially more confined "urban oases" such as

Denver, Salt Lake City, Phoenix and Albuquerque, n13 each of the new western archipelagos is

characterized by a number of central cities typical of a metropolitan area surrounded by a ring of

(often quite extensive) suburbs.

Some of the archipelago cities include both the older western metropolitan centers and smaller

second-tier cities and "towns." Population centers now include Boise, Salt Lake City, Spokane,

Denver, Colorado Springs, Las Vegas, Sacramento, Eugene, El Paso, Dallas, Houston,

Albuquerque, Tucson, Phoenix and Missoula. n14 Sustained settlement is made easier by the West's

extensive, modern network of regional air service and interstate highways.

Moreover, "exurban" development or rural gentrification is occurring around these population

centers. Exurban development, once a major metropolitan area phenomenon, is encouraged by the

continued outward migration and dispersal of jobs to suburban office parks. Commuters can now

live in country settings beyond ordinary driving distances from an urban center; the more educated

and technologically literate urban escapees can telecommute or run homebased businesses rather

than practice the subsistence farming of previous back to the land movements.

The documented rapid growth in dispersed rural development poses new challenges for western land

and water planners. n15 Both rapidly growing urban areas and smaller communities in the

watersheds of origin can be adversely affected by growth. The measurable, as well as the intangible,

costs of rapid, widely-dispersed growth of larger and smaller areas are substantial, n16 including

[*166] increased water use. n17 To curb these costs and to protect the agricultural and rural

landscape, various local governments and states have experimented with growth management since

the 1970s, n18 but outside of the Pacific Coast n19 and enclaves such as Boulder, Colorado, the

idea has been rejected as contrary to the region's manifest destiny and to the enjoyment of God

given property rights.

The growing concern over the fiscal and social costs of the current boom has put the issue on the

western political agenda throughout the region. Too many people are potentially adversely affected

by the continued rapid growth, and many cities want to avoid becoming another Phoenix.

Metropolitan areas continue to expand, raising the traditional sprawl concerns. The new growth

equally threatens areas that assumed that they were immune from rapid change. Smaller cities and

rural communities find that the commodity production economies and cultures that they produced are

threatened by an influx of wealthy outsiders. For example, California's Central Valley, one of the

world's great agricultural districts, is facing rapid urban growth. Rapid and widely dispersed urban

growth raises serious environmental, agricultural policy issues and landscape definition issues as large

amounts of prime farm land, range land, open space and wildlife habitat are lost to urbanization and

the creation of faux ranches. Both large urban areas and small communities face the perpetual

problem of growth: the very amenities that attract people are degraded by growth, and particularly

by poorly-managed growth.

Western states now face the question of how this growth can be accommodated. A return to the

empty pre-World War II colonial West is a romantic fantasy. n20 Growth can be allowed to

continue to spread unregulated, engulfing the perimeters of metropolitan areas, further converting

prime farmland and transforming rural areas into second home communities or small but sprawling

cities with strip malls. The alternative scenario is to manage the inevitable change in a more

sustainable manner. Growth management can be used to reduce municipal service costs and to allow

small communities to protect the very natural and modified ecosystems that define them as well as

the cultures that the western landscape and climate have influenced.

Effective growth control remains difficult for a variety of legal and political reasons, and this article

examines a long-standing growth [*167] management barrier, western water law and policy. Water

development has traditionally been the lubricant of regional growth. Variable regional rainfall patterns

and uncertain water rights have been back-stopped by federal and state water carry-over storage

reservoirs to ensure that water availability was never a barrier to market-driven growth. n21 This

policy effectively prohibited the integration of water and land use planning. The case for integration is

strong, however. Both growing communities and communities of origin should have the ability, within

constitutional limits, to define their resource and landscape heritage. n22

This article looks at the possible integration of water law and growth management in the broader

context of the erosion of state governments' traditional monopoly on water allocation. First, it

explains the endless interregional competition for water that has resulted from the end of the

Reclamation Era. Second, it surveys the reasons for the greater local interest in controlling the use of

water, tracing the current interest to (1) a combination of efforts to preserve terrestrial and aquatic

biodiversity at the local level, (2) the revived interest in rational urban growth as the West continues

to urbanize, and (3) a desire to prevent or mitigate the adverse impacts of the sale of water rights for

use outside the community, known as "water marketing."

All three of these factors must be considered together because growth management in many parts of

the West is not simply an exercise in limiting the pace and location of growth. It is an exercise in

defining a landscape. Finally, the article examines the legal barriers to integration and the possible

available legal means for local communities to overcome them in order to influence or to control the

allocation of water that impact their communities. States are slowly linking water and land use policy

and giving local communities a great voice in the allocation of water.

There is no single best way to coordinate water and local land use policy because doing so involves

two linked but ultimately distinct issues. First, what options do growing communities have to

subordinate the rate and location of growth to water supply policies? Second, what options do

communities in watersheds of origin have to prevent out-of-basin diversions to protect local

economic and ecological bases?

This article has three modest messages. First, growing communities have the discretion to match

water supply to desired growth rates. Second, local values attached to water, which currently have

limited legal recognition, have a legitimate place in water allocation law, even if the weight that should

be given to this voice cannot presently be precisely defined. Neither the law of prior appropriation

nor the public utility law of duty to serve prevent this coordination among growing cities, and thus

greater weight needs to be given to local values. Third, water resources planning can ultimately

become something other than an exercise in data collection and large-scale project justification. n23

[*168] II. Water and Western Growth

A. Water Use Patterns and the Intense Competition for the Resource

Continued growth will require new water supplies, but much of these supplies will most likely be met

from presently developed sources. n24 In the past, western population growth was a justification

for ambitious projects to firm up water supplies. In the foreseeable future, much less of the necessary

water will come from new large-scale water storage projects. Instead, the projected urban growth

will accelerate the on-going reallocation of water from agricultural to urban and environmental use.

n25 There is little evidence in an era of fiscal restraint, environmental protection and balanced

budgets, that the federal government will embark on another round of inefficient state capitalism to

develop all the subsidized water projects still in Bureau of Reclamation and Corps of Engineers

planning documents.

There are four basic categories of water use. n26 Agriculture has historically claimed the largest

share of the region's developed supplies, but this use is declining. Agriculture remains the dominant

water use category in the West, but total withdrawals, as distinguished from consumptive use, have

declined from 86 percent of the total in 1960 to 78 percent today. Reflecting the new landscape of

office campuses, gated communities and golf courses, domestic demands rose from 5 percent of the

total in 1960 to 8 percent in 1990, and water used for thermoelectric power generation rose from 4

percent of the total in 1960 to 9 percent in 1990. n27 The most important water-related conclusion

that can be drawn from recent growth studies is that the growth patterns are relatively less

dependent on the traditional patterns of water use and development because the West's population

growth is not accompanied by a proportional rise in total water demand. n28 Urban water use is

more efficient compared to agriculture. Reliable water use data are tricky to pin down, but the draft

report of the Western Water Policy Advisory Review Commission concludes that:

After several decades of expansion, water withdrawals in the nineteen western states

appear to have stabilized in recent years. Total freshwater withdrawals in the region in

1990 totaled approximately 179 million acre-feet (maf), of which 120 maf came from

surface water and 59 maf was drawn from underground. n29 This represented a 2

percent decrease in surface water withdrawals and a 5 percent increase in groundwater

withdrawals since 1985. n30

Urban growth will be possible, in large part, because in the long run, irrigated agriculture will be able

to claim a proportionately smaller share of the region's resources and the released increment will be

split between urban [*169] use and environmental protection. A recent National Academy of

Sciences report stated the relative position of irrigated agriculture concisely: "The value of water in

agriculture is generally less than in industrial or municipal uses . . . [and] because it is so expensive to

develop additional water supplies, only the higher-value water uses are likely to be justified

economically." n31

As late as 1940, almost half of the West's people were directly employed in farming, ranching,

mining, and agricultural or mineral processing. n32 By 1969, however, all the natural resources

industries together provided only 11 percent of direct employment and 9.6 percent of personal

income for residents of the Rocky Mountain states. The decline is continuing. In 1991, these

combined industries supported less than 6 percent of the region's employment and less than 5

percent of the all personal income. n33 Agriculture has declined in terms of its proportional size of

overall economic activity in the West, from ninth in the list of income sources in 1977 to eleventh in

1993, n34 although largely due to the Central Valley of California, the western states continue to

play an important role in national agricultural production. n35 In all regions, however, crop patterns

create market incentives for water transfers. Nearly half of all western irrigation water is used to

grow crops for livestock. n36 More irrigation water is applied to alfalfa hay than to any other single

crop. In contrast, irrigated crop sales are led by high-value orchards, vegetables and nursery crops.

n37

With rapidly growing western populations, it is not surprising that urban demands for water have

risen in recent years. Between 1960 and 1990, withdrawals for domestic uses of water in the West

more than doubled, rising from 6.5 to 14 million acre-feet. During this same time period, the region's

population increased by about 75 percent. n38 Thus, the trend has not only been toward greater

overall domestic water demands, but also toward higher per-capita use rates. Americans overall

consume about 40 gallons of water per person daily; in the desert Southwest (where residents use a

large part of their urban water supplies to water lawns and gardens) the average per capita daily

consumption is three times as high. Residents of Las Vegas and Phoenix consume over 300 gallons

per day. n39 The United States Geological Survey estimates that, on average throughout the

nineteen western states, domestic per-capita water use increased from 129 gallons per day in 1960

to 160 gallons per day in 1990. n40 The Bureau of Reclamation's survey of recent trends in the

seventeen western states for the period of 1960-1990 showed an [*170] increase of per-capita

water use from 192 gallons per day to 217 gallons per day. n41

Rational water planning is difficult because the federal government can no longer defuse

inter-regional competition (primarily but not exclusively within state boundaries) by financing win-win

multi-purpose projects. The federal government initially carried out the policy that variable supplies

should not limit regional growth by financing the carry-over storage necessary to support irrigation

projects. Urban users got the surplus water and cheap power, and thus urban water suppliers and

irrigated agriculture spoke with a relatively uniform voice to support federal water development.

During the Reclamation Era (1902-1968), n42 water to meet agricultural and urban demands was

"developed" through large carry-over storage projects. For example, after World War II, Congress

changed the Reclamation Act of 1902 from a misguided attempt to populate the region with small

farms to a regional development program that supplied water and cheap power, to urban users as

well as irrigators.

The Reclamation Era is over, and we are now in the era of reallocation and management. The

principle that water should not limit growth has, however, survived the end of the Reclamation Era.

The Bureau of Reclamation has changed its mission from water development to water management,

and budget priorities reflect this change. n43 Some new storage projects will be built but they will be

smaller and more environmentally friendly. Most water reallocation will come through voluntary

transfer of existing rights.

In the 1980s, urban suppliers broke ranks with irrigated agriculture and embraced water marketing.

Marketing emerged as a powerful tool to reallocate water to urban development without building

new dams, and out of necessity, urban suppliers have embraced it. In addition to diminished federal

financing for new storage projects, federal environmental laws made it difficult for cities and states to

spend their own money on new storage facilities.

In 1990, the United States Environmental Protection Agency exercised its authority under section

404 of the Clean Water Act to veto the City of Denver's proposed Two Forks Dam on the South

Platte River. n44 The dam's potential adverse environmental impacts were the primary reason for the

veto, but the Agency also found that Denver defined the project too narrowly and thus precluded the

meaningful consideration of less damaging environmental alternatives. According to the agency,

practicable alternatives are not limited to the least costly or to those that provide maximum security

against supply interruptions.

Marketing is gradually removing the last vestiges of the appurtenancy rules, designed to sustain

agricultural districts and promote the movement of water from lower to higher value uses. The

Bureau is instead trying to position itself as a transfer facilitator. The most dramatic example of this is

the proposed Department of Interior regulation to encourage water banking on the Colorado River

so that Arizona can eventually sell its unused Colorado River entitlements, n45 for [*171] which it

fought epic political and legal battles, to Las Vegas so it can keep growing.

Urban and agricultural water demand now compete with the demand for instream uses.

Non-consumptive uses have long been recognized, but these uses, such as fishery maintenance

flows, were relatively minor until the 1970s. The environmental community is increasingly pursuing a

"green" or more accurately "wet" river ecosystem restoration agenda. n46 The agenda includes the

protection and restoration of watersheds and the maintenance of sufficient instream flows to restore

and sustain the river's historic ecological and hydrogeologic functions. n47

This agenda is also, in some cases, supported by the equity claims of Native American Tribes who

want the right to control sufficient amounts of water to sustain tribes on their reservations. Local

communities are moving toward sustainable development policies that start from the premise that the

community should have a say in the maintenance of the economic, cultural, environmental and

aesthetic resource base.

As students of international relations would predict, the federal government's diminished role has set

off intense competition among water claimants for supplies to meet the demands of urban growth and

environmental restoration. Increasingly, the federal government now functions more as a facilitator of

regional stakeholder settlements than a regional development bank. n48 In general, state

governments have not taken up the slack and assumed the federal government's traditional mediating

role. Instead, they primarily seek to continue to administer the law of prior appropriation, although

the emphasis is shifting to lowering the transaction costs of transfers. Aside from specific dedications

to environmental protection and restoration, there are few limits on the movement of water to cities

from watersheds of origins or on the power of cities to decide how much they need. Ironically, the

insistence of many westerners that land and water are exclusive individual property rights with no

community dimension undermines new community efforts to control their destiny. Land and water

are alienable property rights and individual right holders are generally free to respond to market

pressures without regard to the impact of a decision to break up a parcel of land or transfer a water

right on the surrounding community.

[*172] B. The Law

The American West and the unique customary laws that it spawned have always been about growth,

which was seen as inevitable and generally desirable. The only rational urban strategy was to

anticipate the growth and acquire the secure water supplies necessary to serve population increases.

Thus, growing communities did not consider growth management an option, and rural communities

were powerless to prevent out-of-basin diversions. The politics of western water has been driven by

the principle that water should never be a limitation on growth, and thus growth management was not

a legitimate political issue. A new study of the efforts to restore Owens Lake described Los Angeles'

promotion of water and power to shield Angelenos from the choices that Owens Valley water use

entailed. "While water and power are being ceaselessly supplied to . . . homes, the new middle-class

couples should not have to worry about potential threats to this water source. Instead they are

encouraged to stay home and let the municipality maintain its stronghold over water supplies." n49

Western water law has long supported growth because it removed limitations on water availability.

The law of prior appropriation allows transbasin diversions so cities may bring water from distant

sources. Western water has traditionally been allocated by uniform state rules that allow individual

users to acquire a perpetual right to use water by capturing it and applying it to beneficial use.

Historically, the emphasis was on capture and not on beneficial use. Capture allows water to be

removed completely out of its natural watershed, sometimes leaving little or none for those who may

have need for it later. n50 The original functions of western water laws were to support mining and

the settlement of the west by Jeffersonian farmers. For most of this century, however, a primary

function of western water law has been to support unlimited urban growth. Water rights were

recognized and enforced at the state level, and this centralization effectively divorced control of

water from local communities and made it difficult for communities to integrate water objectives into

whatever land use planning and growth management policies they wished to pursue. n51

The law of prior appropriation imposes no restrictions on the locus of water use, so the place and

type of use depended almost entirely on the needs of the state water right holder. Water can be used

close to the stream system or on lands and cities far from its area of origin. n52 In addition, any

potential community or broader social interests apart from the aggregate interests of the individual

water right holders were minimal or non-existent. If unappropriated water is available, a user is

entitled to perfect a water right for almost any consumptive use. State water administrators acted as

traffic police to ensure that individual water rights were as exclusive as physically possible; the idea

of limiting diversions to protect areas of origin or aquatic ecosystems, or to manage growth, was not

considered a proper state function by the water establishment. n53 Leaving water in the stream for

whatever reason was [*173] not a use. n54 Likewise, water planning meant massive water use

data collection to make the case for water rights acquisitions and project construction so that state

and federal development funding could go forward. It did not mean making hard choices about how

water should be allocated over a long time horizon.

The urban growth stimulated by the doctrine of prior appropriation is further supported by the

widespread assumption that public utility law imposes on municipalities a duty to serve all new

development and to deliver water at average rather than marginal cost. The argument is that urban

water suppliers have a duty to anticipate future growth and provide service at average rather than

marginal cost to all who can afford it. Prior appropriation and the duty to serve induce unlimited

growth because they make it very difficult for local governments (or state planning agencies) to

integrate land use planning and controls with water law and policy. Water law divorces water from

the landscape of the watershed of origin and thus immunizes the recognition and exercise of water

rights from land use law. Land use controls, with the exception of a few states such as Oregon and

Washington, are a local function. This differential allocation of power between the state and local

governments creates a mismatch between growth management and water policy. Urban water

suppliers have been able to take the position that their only water-related duty is to acquire the

supplies necessary to meet demand.

The power of the assumption that urban growth is fate can be seen in a recent case reviewing a

Federal Energy Regulatory Commission (FERC) decision to approve the long-contested pipeline

from Lake Gaston, North Carolina to Virginia Beach, Virginia. n55 North Carolina contested

FERC's determination of project need. North Carolina's arguments pointed to (1) Virginia Beach's

concession that water use declined in the area between 1990-1994, (2) the use of a projection of

growth in excess of Virginia Beach's actual per capita use, and (3) the exclusion of alternative

sources of supply, such as aquifers and reservoir modifications, from safe yield growth projections.

n56 North Carolina specifically challenged the need for a drought margin because safe yield was

calculated on a worst case scenario and emergency wells and demand management would see the

city through short-term drought. The court rejected all of North Carolina's arguments. n57

The court concluded that it was reasonable for FERC to assume that "per capita use rates in Virginia

Beach and the other municipalities would likely increase as those areas become more urbanized,"

n58 the drought augments were rejected as "consistent with 'sound water supply planning,' given that

(1) especially severe droughts might occur, (2) water sharing within the five-city region was not

guaranteed, (3) water restrictions create public health and safety risks, and (4) future water demand

might exceed projections." n59

The court's decision is probably correct as a standard arbitrary and capricious review of an expert

administrative agency. However, the rhetoric of the opinion illustrates the embedded assumption that

water suppliers have a duty to acquire sufficient supplies to accommodate [*174] high-end growth

projections under worst case drought scenarios, and that those who challenge this orthodoxy have a

high, if not impossible, burden of persuasion.

III. Barriers to Local Control of Water

A. State Preemption

State water law grew out of local practices and irrigation district management, but by the end of the

nineteenth century, states had assumed control of local communities and districts by ensuring that

local districts operated pursuant to delegated state powers n60 supervised by a state agency, usually

the state engineer. Local control remained powerful, especially where it was exercised by irrigation

districts, n61 but for most of that period, federal and state water officials set western water policy. In

the twentieth century, local control of water has been strongly resisted by state water administrators.

The political reasons are varied, but the legal theory is based on the assumption, seldom articulated

in the cases or commentary, that water law is an exclusive state function because it is a branch of

property law and regulates civil relationships. This follows either from state constitutions, which

withdraw the power to directly regulate civil relationships from local governments, the constitutional

or judicial rule that local government power is limited to the territorial boundaries of the unit, or from

the express or implied preemption of local laws by legislation of statewide application. As Frank I.

Michaelman and Terrance Sandalow observed in their path-breaking local government casebook,

"whether from want of interest or because of a general understanding that private law is beyond the

scope of the power conferred, local governments have rarely attempted to enact laws that directly

regulate traditional Roman law based civil relationships." n62

Preemption assumes that the enactment of a statewide water code administered by a state official is

good evidence of express intent to displace local regulation in home and non-home rule states.

Courts seldom had to apply these principles since local governments had little incentive to limit the

exercise of state water rights n63 because the assumption that the state had the exclusive authority to

allocate the resource was so widely shared. But there are instances of explicit preemption. For

example, New Mexico refused to recognize that community ditch organizations, which have a unique

local allocation and management culture, can hold collective water rights. n64 The state Supreme

Court held that acequia rights are both community ditch rights and state-created appropriations

subject to the rights of other non-acequia users and subject to the state's powers to adjudicate rights.

n65 This, as Stanley Crawford has observed, enables the water right "to be freed up from land,

acequia, community, and tradition." n66

B. The Duty to Serve and to Plan

Public utility law complemented prior appropriation because most water suppliers have assumed that

they have a legal duty, as [*175] public utilities, to provide adequate supplies for all anticipated

growth. This presumed duty has enabled cities to separate water supply from land use issues and

fueled the race to lock up adequate supplies. n67 Many recent water use conflicts have stemmed

from the efforts of municipalities to ensure for themselves a firm supply, with an adequate margin of

safety for drought, enough water to meet anticipated municipal, industrial, and turf irrigation

demands.

The duty to serve arose out of the medieval origins of modern public utility law. The local lord had a

right to compel his tenants to use his mill, but had no correlative duty to allow access. n68 The

modern law posits that a public utility has a duty to serve all customers within its service area who

can pay for the cost of service, n69 and thus water service duties cannot be subordinated to land use

policies. n70 The duty to serve has never been absolute, but until recently, its limitations were not

used by western cities to enable the coordination of utility service with growth management. The duty

to serve traditionally protected only those with a service area, but cities assumed that they could not

refuse to extend service areas and they could only refuse to extend water service when the supply

was not available. This occasionally led to temporary moratoria, but never to permanent refusals to

accommodate growth. n71

There is a mild tension between the duty to serve and the anti-speculation principles of western

water law. This tension continues to play out in the evolving law of municipal water planning powers.

Cities have long had the power to anticipate "normal" increases in growth, n72 but this power has

been subject to judicial monitoring. Water law's communitarian, utilitarian strain, derived from the

Mormon experience in pre-statehood Utah, required water to be put to an immediate productive

use. Speculation was associated with the specter of monopoly control, and thus water rights could

not be held for long periods of time without application to beneficial use. An appropriative right is

perfected by applying water to a beneficial use. Once the water is actually applied, the priority date

relates back to the first step n73 taken to put the water to beneficial use. In addition, the applicant

must intend to put the water to a beneficial use and such intent cannot be based on "the subsequent

speculative sale or transfer of the appropriative rights." n74 Thus, in theory, the antispeculative

principle made it difficult for cities to stockpile the necessary water rights to serve anticipated

growth. However, the long history of western urbanization shows that the principle seldom prevented

cities from unlimited growth.

The prohibition against speculation presented a problem for cities that wanted to [*176] grow,

especially Denver, Colorado. To grow, these cities had to acquire water rights in anticipation of

growth and hold them for a period of time while they financed and constructed the necessary

diversion works and waited for customers to arrive. The longer the planning and construction

horizon, the more other claimants could attack municipal water rights as speculative.

Over a long series of cases brought by western slope water users against Denver and other eastern

slope municipalities, Colorado has adapted the law of prior appropriation to give public water

suppliers the flexibility to acquire the necessary water rights to anticipate future growth. The courts

initially favored eastern slope appropriations by holding that "it is not speculation but the highest

prudence on the part of . . . [a] city to obtain appropriations of water for the needs resulting from a

normal increase in population within a reasonable period of time." n75 Denver did not always win

n76 and in the 1970s, the court suggested that it would be more willing to find that water rights were

being held for speculative purposes. n77

These decisions induced the Colorado legislature to adopt the "can and will" standard. n78 This

standard is related to, but not identical with, Colorado's anti-speculative doctrine. The latter requires

a non-speculative intent to put water to beneficial use and the former requires that "the applicant

establish a substantial probability that the intended appropriation can and will reach fruition." n79

Judicial control of speculative water planning reached its height in 1985 when the Colorado Supreme

Court held that a city could not form the necessary intent to appropriate until it either establishes a

need within its boundaries or a firm contractual commitment to supply extra-territorial users. n80

The Colorado Supreme Court, however, recently returned to the idea of manifest destiny and

granted municipalities the power to anticipate future growth with a generous margin of error and no

duty to consider alternative water supply augmentation strategies. In 1996, Colorado synthesized its

anti-speculative doctrine as it applies to long term municipal water rights acquisition programs.

Thornton v. Bijou Irrigation Co. subjects municipalities to a limited anti-speculative doctrine. n81

A municipality may acquire a conditional decree without firm contractual commitments, "subject to

the water court's determination that the amount conditionally appropriated is consistent with the

municipality's reasonably anticipated requirements based on substantiated projections of future

growth." n82 A city may include projected annexation areas in its water planning projections.

Municipal water empires in Colorado may, however, be contracting despite Thornton. The

previously discussed federal Environmental Protection Agency ("EPA") veto of Denver's Two Forks

Dam n83 has created pressures on cities to limit service obligations. Prior to the EPA veto, Denver's

water supply contracts with surrounding cities essentially promised to match supplies to growth.

After two Forks, Denver is renegotiating some of these contracts to limit the city's service areas. As

the respected editor of High Country News observed, "Denver's build-build-build policies were

swept away when the advantage of a soft-path approach to water development became apparent."

n84

Colorado still puts the burden on cities to overcome the charge of speculation. Other states impose

stronger duties on cities to plan for adequate supplies. Such legislation seeks to [*177] strike a

statutory balance in giving cities a sufficient margin of safety while still discouraging speculative

appropriations, but in many states the balance is struck in favor supply acquisition. For example,

Arizona law effectively requires municipal water speculation. n85 The state puts cities to the choice

of having no growth or having the necessary water to accommodate growth. Under the state's

groundwater management law, a local government cannot approve a new development of platted

land unless a city can guarantee a hundred-year water supply to satisfy its projected demand. n86

This requires complicated determinations of available ground, surface and Central Arizona Project

water. n87 It also requires a determination that the city has the financial capability to construct the

necessary delivery system and storage works. n88 The "Hundred-Year Supply" rules initially

triggered a race to acquire water ranches and other new sources of supply, and courts have

approved this forward planning. To finance the required supply, cities may levy exactions for water

rights acquisitions even if they will never be put to beneficial use. n89

C. Community Power to Prevent Water Exports or Markets Shifts

Rural communities that have a steady or declining population face another sustainability problem.

These communities have little control over the external markets and legal pressures that affect them.

This is well-illustrated by the plight faced by the town of Fallon, in western Nevada. The town's

historic economic and cultural base, an irrigation district, is being squeezed by the Pyramid Lake

Paiute Tribe. The tribe has succeeded in reallocating some district water to restore a fishery in

Pyramid Lake and a wildlife refuge is being restored by Congressionally funded water transfers. n90

Western water law is based on the understanding that human needs often require water to be

removed from streams and transported over long distances. This idea is expressed as a "policy of

capture," which "allows water to be removed completely out of its natural watershed, sometimes

leaving little or none for those who may have need for it later." n91 One of the more notorious

instances of this policy in practice occurred early this century when the growing city of Los Angeles

acquired land and water rights through surreptitious means in the rural Owens Valley, 250 miles to

the east. The city's aqueduct all but drained the Owens River, leading to serious environmental

problems downstream and hampering the valley's agricultural economy. Years later, rural areas

throughout the West have looked at the Owens Valley story as an example of the dangers of

out-of-basin water transfers. n92

[*178] State law does not provide much of a forum for community interests. All applications for

new appropriations and transfers are reviewed by a state agency. States have loosened their

standing rules to allow non water-rights holders to participate in water rights proceedings, but there

is little substantive protection for community concerns. Most states have the power to subject new

appropriations and, in some instances, proposed transfers, to a "public interest" review. n93 Public

interest review can be supplemented by the public trust doctrine, which permits a court to balance

the environmental and consumptive values of a water use and, in some states, to require that

consumptive uses of navigable waters be subordinated to ecosystem maintenance. n94 This rule

could invalidate rural-to-urban water transfers that are ruled inconsistent with the public trust use of

water. The doctrine has not, however, been extended beyond the protection of fragile ecosystems to

the protection of rural communities.

The fate of efforts to capture community values in state law is illustrated by a celebrated New

Mexico lawsuit. n95 Northern New Mexico, with its long but dying tradition of communal use and

management of acequias would seem to be the ideal place to implement this idea. A trial judge in fact

did so by refusing to approve a transfer even though there was no proof of any injury to vested

rights. n96 The opinion held that a proposed change of water use from livestock and early season

flood irrigation to a ski resort was contrary to the public interest because:

The Northern New Mexico region possesses significant history, tradition and culture of

recognized value, not measurable in dollars and cents; the relationship between the

people and their land and water is central to the maintenance of that culture and

traditions and the imposition of a resort-oriented economy in the Ensenada area would

erode and likely destroy a distinct local culture that is several hundred years old. n97

The case was reversed on appeal, however, because the New Mexico transfer statute at the time

did not allow public interest considerations in transfers. n98 New Mexico law now allows the public

interest to be considered in transfers. This case has led some to suggest that communities be given a

veto over major water rights transfers, n99 but this would be potentially inefficient and is not

currently on the agenda of any state.

The problem of water and growth policy coordination is exacerbated because land use controls

have, except in a few states such as Oregon, largely been delegated to the county and municipal

level. Water allocation, however, remains primarily a state function, reinforcing the historic severance

of water from land use issues. The limited role that water law and policy plays in the stabilization of

rural communities is illustrated by the National Academy of Sciences study of western water

transfers, Water Transfers in the West: Efficiency, Equity, and the Environment. n100 This

study recognized that [*179] impacts of rural communities such as "changes in the quality of

community life, feelings of 'connectedness' to the land, and a sense of control over an area's destiny,"

are legitimate third-party effects of water transfers. n101 The report did not, however, indicate the

weight that should be given to community stability when water is reallocated. This failure reflects the

long-standing social policy that the government has no special responsibility to protect communities

from the discipline of the market. For example, plant closings due to downsizing, cheaper labor costs

abroad, or other corporate reasons have been identified as a major problem. The Congressional

response, however, has been confined to the Work Adjustment and Retraining Notification Act

(WARN). WARN only requires that companies which plan to shut down a plant with 50 or more

employees or layoff over 500 workers give sixty-days notice to the workers and the affected state

and local government. Government cannot veto the corporate decision and the penalties are entirely

monetary.

IV. The Erosion of Barriers to Local Control

The barriers to the integration of water and land use planning are substantial and remain in place

throughout the West. There are, however, scattered signs that state control over water allocation and

use is eroding. Urban suppliers and local communities are becoming more involved in water issues,

and some of this localism is being reflected in legislation and judicial decisions. This section describes

the changing legal and political landscape that gives more weight to local interests in water allocation

and use decisions.

A. State Preemption

The traditional assumption of western water allocation, that control should not be shared between

different levels of state government, has been questioned by environmental interests and advocates of

greater watershed control over the resource. The statewide interest in water rests on the entrenched

policy that water should be put to its highest economic use. But the traditional equation of value with

demand neglects other components of the resource's value.

The core principle is that water has place and community values that are submerged by state

recognition and administration. Water law scholars have argued that water has extra-market or

community values. In their study of water conflicts in northern New Mexico, F. Lee Brown and

Helen Ingram concluded that "water has an emotional and symbolic meaning for the West that

transcends its commodity value." n102 Local control is a way, although not an exclusive one, by

which these in place values can be recognized. Once these values are recognized as legitimate, the

case for preemption diminishes. Professor Daniel Rodriguez has written, "where the issue is

ecosystem management, the case for field preemption is not strong. . . . That ecosystem issues raise

matters of statewide concern need not mean that same issues are not simultaneously matters of local

concern." n103 For example, ground water pollution regulation is much less centralized compared to

surface pollution control and local communities are taking an active role in regulating land use to

protect drinking water sources from contamination. n104

In western water cases, courts are also starting to reevaluate the traditional preference for exclusive

state control. California has long refused to enact statewide ground water extraction regulation. The

state's conscious refusal to regulate has opened the door to counties that want to control the export

of ground water. Potential exporters challenged these ordinances as outside the scope of local

authority, but a California intermediate court of appeal refused to find field preemption and upheld

the power of counties to prohibit the export of groundwater because the state had not effectively

[*180] occupied the field of ground water regulation. n105

A Colorado court reached a similar conclusion construing the ambiguous delegation of land use

authority to local governments. Colorado long ago sanctioned the export of water from the western

to the eastern slope of the Rocky Mountains, but it has recently begun to grant west slope counties

more say in the diversions as these counties have gained population and developed major tourist

economies. Legislation allows counties to designate activities, such as transbasin diversion, a matter

of state interest, and to develop permitting procedures for these activities. n106 A west slope county

did so and denied a permit for a transbasin diversion because the diversion structure would impair a

wetland. The water right holder argued that state water law preempted the local regulation, but the

state court of appeals held that an entitlement to divert water "should not be understood to carry with

it absolute rights to build any diversion project." n107

B. Duty to Serve and to Plan

The recognition that growth management is a legitimate local government function has modified the

traditional duty to serve principle. The common carrier and public utility duty was premised on the

idea that the public interest required courts to police monopoly under production. n108 The duty

remains an important limitation on utility service, especially as gas and electric service are

deregulated. The primary beneficiaries of the doctrine should, however, be captive consumers, n109

not new entrants into a community. n110 Communities wishing to define growth and non-growth

areas have articulated a public interest in limiting utility service to confined areas. Courts initially

suggested that this conflicted with the duty to serve, n111 ignoring the fact that a new public interest

has been articulated by a local government. A city should not be required to undermine its own

growth management policy simply because it is also a water supplier, and more recent courts have

so held. n112 Non-municipal suppliers should be subordinate to this policy so long as the policy

does not impair their constitutionally guaranteed fair rate of return.

Consistent with this analysis, the Nevada Supreme Court has held that a county may deny a

subdivision permit because it is inconsistent with a county water-use plan. n113 To preserve the

hydrologic balance in the southern part of Washoe County (Reno), the County's plan prohibited five

acre or less subdivisions "until a new water source is available." The developer argued that the

county's action impaired his state water rights, but the court held that the power to define rational

growth "includes the ability of county government to determine water availability for itself." n114

The duty to serve is ultimately rooted in the basic ideas of fairness and estoppel. Courts [*181]

protected those who had entered into a service relationship with a common carrier or were within

the service area of a public utility but were denied service when carrier or the utility was able or

should have been able n115 to provide it. n116 A variety of excuses for the refusal of service were

also recognized. n117 This required the utility to anticipate immediate future growth, n118 but the

duty never extended to remote areas. Utilities were only required to extend service when it was

fiscally reasonable to do so. n119

The estoppel basis of the duty to serve is illustrated by a 1996 opinion of the New York Public

Service Commission on competition in the generation of electricity. n120 Several industry groups

raised the issue of whether the duty to serve would survive deregulation, and the Commission

recommended that transmission and distribution companies must remain providers of last resort, but

it qualified this duty. "In order to protect all customers, transmission and distribution companies will

need to remain obligated to serve all customers, at least in the short run." n121

Recent legislation in Idaho and California imposes increased water planning duties on cities, lessens

the duty to serve, and opens the door to alternative growth scenarios. n122 This legislation assumes

that the duty to serve is not absolute. Idaho strikes the balance more in favor of rural areas and thus

potentially limits rural-urban water transfers to growing areas. The statute gives the Director of the

Department of Water Resources authority to deny a transfer from agriculture to municipal use

because the city does not need it. As the previous discussion of Colorado's attempts to subject

municipal water planning to the anti-speculation doctrine illustrates, local governments have nearly

unlimited discretion to make population growth projections.

Idaho recently limited such municipal discretion by requiring some basis to address the water

resources impacts of land conversion around Boise. n123 Idaho instead now authorizes the

Department of Water Resources to determine the planning horizon for municipal retention of water

rights. Planning horizon is defined as "the length of time that the department determines is reasonable

for a municipal provider to hold water rights to meet reasonably anticipated future needs." n124

Such needs are calculated by population and other planning data but "shall not include uses of water

within areas overlapped by conflicting comprehensive land use plans." n125 This standard is used to

evaluate transfers. The Director must decide that the municipal change of use application is necessary

to serve reasonable anticipated future need and will not significantly affect the agricultural base of the

area. n126 This provides a way for the state to use a local agricultural preservation plan as a basis to

deny an [*182] agricultural to municipal and industrial transfer.

California has linked water supply and land use planning objectives in a way that gives local

governments some ability, if they take advantage of it, to control the use of local water resources.

The growth of the Bay Area has spilled into the Central Valley, one of the world's most productive

agricultural districts. The case, problematic as it is, for farm production preservation n127 is stronger

here than in many other parts of the West, including the Central Snake River Plain in Idaho. In 1995,

California enacted legislation, primarily in response to the rapid and dispersed urban growth and

conversion of prime agricultural land in the San Joaquin Valley. The Valley is growing faster than the

state average and may triple its population to 12.24 million in 2040. n128 One half of the projected

farmland conversion is classified prime farmland by the Natural Resources Conservation Service

(formerly the Soil Conservation Service). n129 The 1995 legislation requires cities to have a firm

water supply plan in place before large, new developments are approved. n130 This legislation

reflects the end of the Reclamation era because cities can no longer assume that either the state or

the federal government will build and finance the supply augmentation project that growth will

ultimately necessitate. Unlike Arizona, the statute does not impose a de facto duty on a city to

acquire sufficient water rights, instead, it limits the power of cities to approve new growth while

deferring the issue of actually providing an adequate water supply until a later date.

This duty reinforces the requirement under the California Environmental Quality Act (CEQA) n131

that municipalities consider the adverse environmental impacts of water-dependent growth. This duty

includes the assessment of the impacts of rural to urban water transfers in the area of origin. An

intermediate appellate court has interpreted CEQA to reinforce the duty to match growth to

availability of water supplies. n132 The California Court of Appeal held that a county cannot defer

the consideration of water supply issues in a phased commercial-residential project when a

permanent supply is not available unless a subsequent EIS is prepared for the specific residential

phase. n133 Similarly, the second opinion in Inyo County's challenge to Los Angeles' EIR assessing

expanded groundwater extraction stated that "it is doubtful whether an EIR can fulfill CEQA's

demands without proposing so obvious a solution" as "water conservation goals within Los Angeles'

service area." n134

The Inyo-Los Angeles litigation was finally settled in 1997 n135 and the settlement indicates that the

EIR process is more effective at protecting [*183] areas of origin than in stimulating "downstream"

demand management. Under the settlement, n136 which was stimulated by the Superior Court of

Inyo's invalidation of a groundwater export ban, Los Angeles and Inyo counties formed a standing

committee and technical group to monitor the vegetation and groundwater conditions around Los

Angeles' well fields. All existing fields are designated management areas, and the vegetation within

each area has been classified and mapped. The goal of the settlement is to manage pumping so that

withdrawals will not exceed total recharge over a twenty-year period and to avoid the adverse

environmental impacts of vegetation changes in the five different classifications such as crop land,

riparian and marshlands and meadows. "Significant" is not defined, but the settlement provides a

process and set of factors. n137 Water balances for each field will be established by the first day of

each month, and these balances plus other hydrologic data will be the basis for Inyo County to

prepare a yearly operations and pumping program.

C. Community Power to Prevent Water Exports or Market Shifts

Communities may use state water law to protect the economic and ecological base of the area of the

origin. In recent years, rural communities have asserted their interests more aggressively. Control can

take the form of pressure to prevent state approval of out- of-basin transfers. In the early 1990s, for

example, a diverse mix of residents of San Luis Valley in southern Colorado, the northern-most

extension of the Spanish Empire in the Rocky Mountains, opposed a private company's proposal to

pump and transport groundwater from their basin to far-away urban areas. Funded by a

self-imposed tax, the locals were able to participate in water court proceedings that ultimately led to

the defeat of the proposed water export. n138 Water managers in Colorado's Arapahoe County ran

into similar local opposition when they proposed a network of diversions, reservoirs, and pipelines to

transport water from the Gunnison River basin on the western slope to the rapidly growing Front

Range. One group, calling itself People Opposed to Water Export Raids (POWER) formed

specifically to rally opposition to the project. n139

In light of increasingly powerful opposition, the next step is often the search for consensus processes.

In some western river basins, rural residents are finding the means to resolve water disputes outside

of the traditional channels. For example, irrigators and environmentalists hammered out an innovative

instream flow protection scheme for the Clark Fork River in Montana as an alternative to costly and

time-consuming litigation. The coalition's plan was later adopted by the state legislature and now

guides water management in the upper basin. n140 These and many other stories of rural

communities organizing around water offer support for the proposition that "because water is a highly

emotional issue closely bound up with ideas of community, self-determination, and survival, it

prompts a committed, group response that is a necessary ingredient to successful economic

development." n141 It appears likely that rural communities and other previously dispossessed

interest groups increasingly will insist upon a seat at the table in water decisions with increasing

frequency and success.

Community efforts are often directed against a specific transfer; thus the community's interest does

not extend beyond the preservation of the status quo. But these processes can link area of origin and

urban issues by raising demand-side management as an alternative to a water export. There are

several [*184] significant basin-wide water settlements under way right now in the West. The

driving force is usually an environmental problem, but the physical solutions that are worked out can

include urban demand management.

For example, on-going settlement negotiations in the Truckee-Carson basin of Nevada between an

Indian Tribe and the Reno Sparks area n142 tentatively allow the urban water supplier for the

Truckee Meadows to store drought reserves in a reservoir dedicated to endangered species

protection. The trade-off is demand-side management. The Reno-Sparks metropolitan area is

required to implement conservation measures, such as lawn watering restrictions and water saving

devices, to reduce water use by about 10 percent. n143

These efforts will continue to be ad hoc because communities do not have any rights outside of state

water law. Communities do, however, benefit indirectly from some aspects of western water law,

such as de facto appurtenancy statutes. The 1992 Central Valley Project Improvement Act is an

example of a modernday appurtenancy law which affords indirect protection to communities. n144

The Act revolutionized the Central Valley Project (CVP) by dedicating water both to fishery

restoration and in and out of basin urban growth. Transfers in excess of 20 percent of a contracting

agency's long-term space entitlement are subject to agency approval. The amount of transferrable

water cannot exceed the average annual quantity delivered during the last three years of normal

water delivery before 1992. All transfers of water out of the CVP service area are subject to a right

of first refusal by the agencies within the CVP service area. n145

Communities also benefit from area of origin legislation, which is aimed at preventing the dewatering

of rural areas, exemplified by the Owens Valley. Area of origin versus distant community conflicts

have been a staple of western water politics, especially in California. "Remember the Owens Valley"

is a rallying cry throughout the West. Various measures have been proposed to alleviate these

impacts, n146 and several states, including California, have passed area of origin protection laws.

The California Water Code, for example, prohibits the state from transferring appropriations that it

holds if the transfer will deprive the county in which the water originates of water necessary for

development. n147 A broader statute protects watersheds of origin and adjacent areas from the

export of water to supply projects such as the CVP. n148

Area of origin laws have not prevented the movement of water to urban areas, and thus, they do not

provide much comfort to local communities who want to control the resource because area of origin

laws teach that area of origin conflicts should be resolved by the state legislature through state water

law. Communities participate in this debate either as victims, as in the Owens Valley case, or by

petitioning the state legislature to protect them.

The victim perspective is reinforced by conventional analysis that seeks community input as a

necessary, but minor, check on the presumptive efficiency of transfers. For example, the National

Water Commission suggested that a transfer of water from one basin to another should be permitted

only when it has been proven to be the lowest economic cost source of water supply and to have

benefits that exceed all costs. n149 Others have suggested that areas of origin should be adequately

compensated [*185] for their economic losses, n150 but such compensation would do little to

address the social and cultural impacts that may result. Federal law may also weaken area of origin

protection. After the California statute was passed, the CVP became a federal project subject to

Section 8 of the Reclamation Act of 1902, which to some extent undermines state protection. n151

The principle of area of origin protection can be expanded to encompass river basin protection in

some circumstances. For example the California Delta Water Rights decision used the public trust

doctrine and state water quality law to extend area of origin protection downstream from headwaters

counties. The Sacramento-San Joaquin Delta, the traffic circle for water on its way from northern to

southern California, is beset by fisheries, water quality, and other environmental problems.

Addressing these problems requires greater flows at critical times of the year. The California Water

Resources Board initially refused to consider water quality standards inconsistent with existing water

entitlements from federal and state projects. The California Court of Appeal held that water quality

protection standards must be set without regard to the vested water rights for all right holders,

private, federal and state. n152 This decision was the first effective constraint on diversions out of

the Delta and set in motion the Bay Delta "Cal-Fed" process. In addition to the protection of the

environmental values in the Delta watershed, the process has linked urban and local community uses.

Communities also benefit from the modest expansion of the scope of inquiry in water rights

application and transfer proceedings. Except in Colorado, water rights applications and transfers are

reviewed by a state agency. States have liberalized standing rules to allow non-water right holders to

participate in water rights proceedings, but there is little substantive protection for community

stability. The public trust has been used to protect vulnerable ecosystems but not human

communities. Most states have the power to subject new appropriations to a public interest review

and public interest review is now being extended to transfers. Statutes in California, Idaho, Montana,

Nebraska, Texas and Wyoming give state water administrators the power to take public interest

considerations into account in transfers. n153 A Utah court recently interpreted that state's transfer

statute to include public interest review. n154 The Idaho Supreme Court has ruled that state law

allows the Department of Water Resources to invite protests in change of place of diversion

proceedings from third parties beyond those in the immediate area of the diversion, and this ruling

was upheld on appeal. n155

V. Conclusion

In sum, growing communities have the discretion to match water supply to desired growth rates and

rural communities in watersheds of origin should have a greater voice in the allocation and use of

water that flows through their communities or lies in aquifers beneath them. Today, water and land

use proceed under two different property and regulatory regimes. State water law currently

encourages urban growth and gives limited recognition to the local values attached to water. Local

communities have little opportunity to subordinate water to growth management policies where they

exist. The first step to reversing the disincentives to integrate land and water policy is to recognize

that local values have a legitimate [*186] place in water allocation law, even if the weight that

should be given to this voice cannot presently be precisely defined. Additionally neither the law of

prior appropriation nor the public utility law of duty to serve prevent this coordination among

growing cities. Ultimately, water resources planning can become an exercise in watershed protection

and landscape definition.

[*187] Appendix A

Population Growth Rate

Doubling Time in Years

1990- 1994 Percentages for the

Ten Fastest Growing States

1. Nevada

21.2%

3.3

2. Idaho

12.5%

5.8

3. Arizona

11.2%

6.4

4. Colorado

11.0%

6.5

5. Utah

10.7%

6.7

6. Alaska

10.2%

7.0

7. Washington

9.8%

7.3

8. New Mexico

9.1%

7.9

9. Georgia

8.9%

8.1

10. Oregon

8.6%

8.4

1990-1994 Percentages for the

Ten Fastest Growing Cities

1. Las Vegas, Nevada

26.2%

2. Laredo, Texas

22.4%

3. McAllen, Texas

20.2%

4. Yuma, Arizona

19.4%

5. Boise, Idaho

17.6%

6. Naples, Florida

16.0%

7. Brownsville, Texas

15.2%

8. Fayetteville, Arkansas

15.0%

9. Las Cruces, New Mexico

14.7%

10. Richland, Washington

14.6%

[*188] Appendix B

Projected Growth in Western States, 1995-2000

State

Pop. 1995

Pop. 2000

Percent of

Increase

Nevada

1,530,000

1,871,000

22%

Idaho

1,163,000

1,347,000

16%

Arizona

4,218,000

4,798,000

14%

Utah

1,951,000

2,207,000

13%

Colorado

3,747,000

4,168,000

11%

New Mexico

1,685,000

1,860,000

10%

Montana

870,000

950,000

Wyoming

480,000

525,000

Oregon

3,141,000

3,397,000

Washington

5,431,000

5,858,000

South Dakota

729,000

777,000

Texas

18,724,000

20,119,000

Kansas

2,565,000

2,668,000

Nebraska

1,637,000

1,705,000

North Dakota

641,000

662,000

Oklahoma

3,278,000

3,373,000

California

31,589,000

32,521,000

FOOTNOTES:

n1 A recent list of the ten most rapidly growing states and cities reflects this growth trend. See

ATLAS OF THE NEW WEST: PORTRAIT OF A CHANGING REGION (William Riebsame

ed. 1997) [hereinafter ATLAS OF THE NEW WEST]. See Appendix A for distribution, ed.

n2 The West's pattern of growth is not expected to abate any time soon. Between the years 1995

and 2000, the seventeen western states will add 5.427 million people, or about 6.1 percent. See

Appendix B for distribution, ed.

n3 Pamela Case & Gregory Alward, Patterns of Demographic, Economic and Value Change in

the Western United States: Implications for Water Use and Management 7 (Western Water

Policy Advisory Review Commission) (August 1997) [hereinafter Patterns of Demographic,

Economic and Value Change].

n4 See ATLAS OF THE NEW WEST, supra note 1, at 55.

n5 Federally financed water resources projects were a crucial element of the subsidy package. The

orthodox view that federal water resources projects were essential to the West's economic growth

was articulated and questioned in a pioneering 1968 National Academy of Sciences committee study

chaired by the great water geographer, Gilbert White. National Academy of Sciences, Water and

Choice in the Colorado River Basin: An Example of Alternatives in Water Management

(1968).

n6 The shift to the "New West" is painful for many individuals and communities. Many conflicts in the

West center on tensions within local communities between those which perceive themselves as

dependent on traditional commodity production and those who argue that non-commodity resources

such as the natural landscape will help sustain the community economically in the future. For a

thoughtful analysis of the traditional and new economics of community development, see THOMAS

MICHAEL POWER, LOST LANDSCAPES AND FAILED ECONOMIES: THE SEARCH

FOR A VALUE OF PLACE (1996).

n7 The long-popular colony thesis is articulated in RICHARD D. LAMM & MICHAEL

MCCARTHY, THE ANGRY WEST: A VULNERABLE LAND AND ITS FUTURE 5-18

(1982). Ironically, this hysterical diatribe against the federal government and outsiders was written

just at the collapse of the energy boom and the beginning of the West's transition to a

non-commodity-based economy.

n8 Recent bleak assessments of the "New West" include TIMOTHY EGAN, LASSO THE WIND:

AWAY TO THE NEW WEST (1998) and ROBERT D. KAPLAN, AN EMPIRE

WILDERNESS: TRAVELS INTO AMERICA (1998). Mr. Kaplan previously published

BALKAN GHOSTS, an account of his travel through the modern Balkans, and he brings the same

eye for future trouble rooted in unsolved social problems to the modern West.

n9 See ATLAS OF THE NEW WEST, supra note 1, at 97.

n10 William Riebsame, Western Land Use Trends 65, Western Water Policy Advisory Review

Commission (1997) [hereinafter Land Use Trends].

n11 ATLAS OF THE NEW WEST, supra note 1, at 96. In June, 1998, the Wall Street Journal

published a list of the ten metropolitan areas that are expected to grow the fastest between 1995 and

2020. Seven of the ten areas are in the West; the other three are in Florida and South Carolina.

Provo-Orem, Utah and Las Vegas, Nevada lead the list with projected annual growth rates of 2.53

percent. The other Western areas listed are Laredo, Texas; Olympia, Washington; Santa Fe, New

Mexico; Phoenix, Arizona; and Las Cruces, New Mexico. Felicia Paik, Private Properties,

WALL ST. J., June 12, 1998, at W10.

n12 The classic study of the construction of the myth of the enduring frontier west is ROBERT G.

ATHEARN, THE MYTHIC WEST (1986).

n13 In spite of the image projected by tobacco and automobile advertising, the coastal and interior

West has long been characterized by the highest percentage of urban, as opposed to rural,

population in the country, but it tended to be concentrated in oasis cities that had marshalled

sufficient water supplies to sustain themselves. See GERALD NASH, THE AMERICAN WEST

TRANSFORMED: THE IMPACT OF THE SECOND WORLD WAR (1985); NASH, THE

AMERICAN WEST IN THE TWENTIETH CENTURY (1977).

n14 Case & Alward, Patterns of Demographic, Economic and Value Change, supra note 3, at

n15 Land Use Trends, supra note 10, at 63-64.

n16 The traditional case for growth control reflects the European preference for compact, orderly

development that results in a clear urban-rural demarcation. See TIMOTHY BEATLEY &

KRISTY MANNING, THE ECOLOGY OF PLACE: PLANNING FOR ENVIRONMENT,

ECONOMY, AND COMMUNITY (1997). One of the most powerful arguments for this policy is

that compact growth costs much less than widely dispersed, leap-frog growth. See DAVID L.

CALLIES, ROBERT H. FREILICH & THOMAS E. ROBERTS, CASES AND MATERIALS

ON LAND USE 555-58 (1994). The root problem of growth control is that compact landscapes

are alien to the American experience. The settlement patterns of Central Europe produced clustered

villages surrounded by individual fields and common pastures. Urban centers developed around the

old Roman centers and the Koeingsburgen (royal cities). Cities were walled religious and

commercial centers with well defined limits which grew slowly until the 18th century. The rise of the

nation-state after the Peace of Westphalia gave rise to the modern theory of city planning and the

model of the orderly city remains the dominant vision in Europe and among American planners.

Many buildings were destroyed in the Thirty Years War and theories of the ideal town emerged.

"City planning became an instrument of state policy . . . . Since the state was omnipotent (allmacht),

it had not only the right but the duty (pflicht) to be an active agent of city planning . . . . The critical

ideas were (1) defense, (2) display or pageantry and (3) perspective." E. A. GUTKIND, URBAN

DEVELOPMENT IN CENTRAL EUROPE 197 (1964). This led to "the layout of homogeneous

squares surrounded on all sides by uniformly designed buildings, to wide uninterrupted streets, to the

extension of towns in accordance with definite plans under the supervision of the state or by private

contractors who were commissioned by state authorities." See id. In contrast, the United States was

settled as a series of rapidly moving frontiers with very low population densities which has meant that

only the cities on the Atlantic coast grew organically or were planned in the European tradition. The

history of pre-20th century city planning is a history of platting. See JOHN REPS, TOWN

PLANNING IN FRONTIER AMERICA (1965). Cities were laid out to encourage real estate

speculation and each city was to be a metropolis. In Europe, plans extended existing settlements; on

the United States frontier, plans were intended to attack urban growth. The history of city planning is

filled with beautifully platted new "paper towns that failed to live up to the inflated claims of their

sponsors." Id. Thus, cities grew rapidly and chaotically in the 19th century. The dominant pattern in

the United States from the Allegheny mountains to the Pacific Ocean is the grid or gridiron and

low-density occupation of land. We carved up the public lands in square sections and by the

beginning of the 19th century the endless pattern of right angle streets became the model of urban

development. The low-density tradition has been carried out as people move further and further out

from the city center in what a leading historian has called the Crabgrass Frontier. See KENNETH T.

JACKSON, THE CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED

STATES (1985).

n17 "Since up to half or more of city water use in the drier Western cities goes to landscaping . . . it

can be assumed that a sprawling city uses more water per capita than a dense/compact city." William

Riebsame, Western Water Use Trends 65, Western Water Policy Advisory Review Commission

(1997) [hereinafter Water Use Trends].

n18 Growth control emerged as a major state and local political issue in many states due to a

combination of rapid post-World War II suburban growth and the rising environmental movement

which linked open space protection and the costs of sprawl to larger environmental goals. One of the

best surveys of the early initiatives is JOHN M. DEGROVE, LAND GROWTH & POLITICS

(1984). The roots of Western interest in growth control can be traced to the reaction to the energy

boom of the 1970s and the backlash against mega-urban renewal projects. For a brief but insightful

history of anti-growth and development movements in the West, see RICHARD WHITE, "IT'S

YOUR MISFORTUNE AND NONE OF MY OWN": A HISTORY OF THE MODERN WEST

568-70 (1992).

n19 ORE. REV. STAT. � 197.010 et seq., and WASH REV. CODE � 36.70A.010, have the state

wide planning processes that require local governments to delineate urban growth boundaries and to

channel development with targeted areas. See Edward J. Sullivan, Oregon Blazes a Trail, in

STATE AND REGIONAL COMPREHENSIVE PLANNING: IMPLEMENTING NEW

METHODS FOR GROWTH MANAGEMENT 51 (Peter A. Buschsbaum and Larry J. Smith,

eds., 1993); Larry J. Smith, Planning for Growth, Washington Style, id. at 137. Once a

Washington county adopts a growth management plan consistent with the Growth Management Act,

the plan is not subject to a referendum because allowing referenda would undermine the goals of the

Act. See Snohomish County v. Anderson, 868 P.2d 116 (Wash. 1994).

n20 The late, great writer Wallace Stegner summed up the problem of those who love the region.

Constant, rapid and destructive change has been the hallmark of the region but, as he put it, "I don't

really want the West to change from the way it was when I liked it." CONVERSATIONS WITH

WALLACE STEGNER ON WESTERN HISTORY AND LITERATURE xxiii (Revised ed.

1990).

n21 For an excellent history of the nineteenth century roots of this policy, see DONALD J. PISANI,

TO RECLAIM A DIVIDED WEST: WATER, LAW AND PUBLIC POLICY (1992).

n22 Community efforts to define their culture, the quality of their landscapes and the built

environment are difficult in our Constitutional system since land use regulations must satisfy First and

Fifth Amendment standards, but a combination of regulatory and land acquisition techniques, see,

e.g., Florence Williams, Do Fence Me In, Farmland Preservation in Colorado? It's a Fact, 63

PLANNING, No. 5, at 18 (May 1997), exist to allow communities to chart their own destiny. For a

good discussion of the tension between community and liberty values, see TIMOTHY BEATLEY,

ETHICAL LAND USE: PRINCIPLES OF POLICY AND PLANNING 190-226 (1994). The

late Norman Williams was a leader in designing regulatory strategies, primarily Vermont Act 250,

VT. STAT. ANN. tit. 10, �� 6001-6108, to allow rural communities to protect their built and

"natural" environments. See NORMAN WILLIAMS, ET AL., VERMONT TOWNSCAPES

(1987); RICHARD O. BROOKS, TOWARD COMMUNITY SUSTAINABILITY:

VERMONT'S ACT 250 (1997) (two volumes). The current concept of environmentally-sensitive

growth is "Smart Growth." 13 NATURAL RESOURCES AND ENVIRONMENT, No. 1 (1998)

is devoted to the issue of environmental protection and Smart Growth.

n23 The gap between the limited nature of water resources planning and its potential, such as the

integration of land and water issues, is explored in David H. Getches, Water Planning: Untapped

Opportunity for the Western United States, 9 J. OF ENERGY LAW & POLICY 1 (1988).

n24 See, e.g., HAROLD O. CARTER, HENRY J. VAUX & ANN F. SCUERING, eds.,

SHARING SCARCITY: GAINS AND LOSERS IN WATER MARKETING 5 (1994).

n25 Land Use Trends, supra note 10, at 5 concludes that the existing urban water planning,

including conservation, "will . . . reduce per capita consumption of water in Western cities over the

next few decades, perhaps slowing, but not permanently reducing, the increase in total urban water

demand." A recent example of the shift from the reliance of traditional water suppliers to develop the

necessary supplies to meet projected demand occurred at the edge of the San Francisco Bay Area.

When developers of an 11,000 unit project in southern Contra Costa County failed to convince

EBMUD to serve the area, the developers secured the water from a nearby flood control and

conservation district which in turn acquired 7,000 acre feet from the Berrenda Mesa Water District

in Kern County, at the bottom of the Valley. 13 CALIFORNIA PLANNING & DEVELOPMENT

REPORT, No. 3, at 2 (March 1998).

n26 They are agriculture, municipal, industrial and non-consumptive. Wayne B. Solley, Estimates of

Water Use in the Western United States in 1990, and Water Use Trends 1960-1990 14,

Western Water Policy Advisory Review Commission (1997) [hereinafter Estimates of Water Use].

n27 Id.

n28 A recent United States Geological Survey document, Preliminary Estimates of Water Use in

the United States, 1995, confirms this. Wayne Solley, National Water-Use Information Program

Manager, found that water use decreased from 1980-95 in the face of continued population

increases. Freshwater withdrawals have decreased ten percent over the peak year of 1980. Western

States Water, No. 1244 (March 20, 1998).

n29 Solley, Estimates of Water Use, supra note 26, at 1.

n30 Id.

n31 NATIONAL RESEARCH COUNCIL, A NEW ERA FOR IRRIGATION 67 (1996).

n32 Case & Alward, Patterns of Demographic, Economic and Value Change, supra note 3, at

n33 Ray Rasker, A New Look at Old Vistas: The Economic Role of Environmental Quality in

Western Public Lands, 65 U. COLO. L. REV. 369, 377 (1994).

n34 See Case & Alward, Patterns of Demographic, Economic and Value Change supra note 3,

at 11, 13.

n35 Federal policy toward agriculture has changed in recent years, as evidenced by the Federal

Agriculture Improvement and Reform Act of 1996 (also known as the 1996 Farm Bill). This

legislation removed the link between income support payments and farm prices by providing for

seven annually fixed but declining "production flexibility contract payments," whereby participating

farmers may receive government payments independent of current farm production and prices.

Farmers will have much greater flexibility to make planting decisions with the elimination of annual

acreage idling programs. They will be able to plant any crop on contract acres, with limitations on

fruits and vegetables. As a result, farmers will rely more heavily on the market as a guide for

production decisions, and will bear greater income risk because payments are fixed and are not

related to market prices.

Agricultural producers are facing many pressures for change as the food and fiber they produce are

marketed in a global economy. International trends favoring an increase in demand include the

continued rise in world population, increases in per capita gross world product, free trade and

scarcity of water supplies. Grain exports from the U.S. are projected to increase as a result of world

food demands (including growing per capita meat consumption) and the benefits of the North

American Free Trade Agreement, or NAFTA.

n36 See Western Water Policy Advisory Review Commission, Water in the West 2-24 (1997)

[hereinafter Water in the West].

n37 See id. at 2-24-25.

n38 See Solley, Estimates of Water Use, supra note 26, at 4.

n39 See Riebsame, Water Use Trends supra note 17, at 81.

n40 See Solley, Estimates of Water Use, supra note 26, at 1.

n41 United States Bureau of Reclamation, Recent Trends in Water Use -- The 17 Western States,

Municipal and Industrial Use Category 4 (July 16, 1997).

n42 The idea that the Reclamation Era has ended remains heresy in much of the West, but the reality

is that the defeat of the two cash register dams at either end of Grand Canyon in 1968 and the

passage of the Wild and Scenic Rivers Act in that same year marked the end of its heyday. The era

lingered for another twenty years in theory, but President Carter's 1977 hit list became reality in the

domestically fiscal conservatism of the Reagan years and in 1986 the Bureau of Reclamation, in a

move analogous to the fall of the Soviet Union in 1989, renounced state capitalism and took on the

role of resource manager.

n43 See United States Bureau of Reclamation, RECLAMATION'S STRATEGIC PLAN: A

LONG -- TERM FRAMEWORK FOR WATER RESOURCES MANAGEMENT,

DEVELOPMENT AND PROTECTION (June 1992). President Clinton's 1999 budget shows $

35M drop in the Bureau of Reclamation's two major accounts, water resources management and

water and related resources. The bulk of new and continuing initiatives are for environmental

restoration and dam safety. See WESTERN STATES WATER, No. 1238 (February 6, 1998).

n44 See United States Environmental Protection Agency, Final Determination of the U.S.

Environmental Protection Agency's Assistant Administrator for Water Pursuant to Section

404(c) of the Clean Water Act Concerning the Two Forks Water Supply Impoundments,

Jefferson and Douglas Counties, Colorado, 56 Fed. Reg. 76 (1991) (effective Nov. 23, 1990).

n45 A proposed Department of Interior permissive rule for the lower Colorado River would allow

states to deposit unused increments of their Compact entitlements into state-authorized water banks

and subsequently transfer the water to a "consuming" state. See Offstream Storage of Colorado

River Water and Interstate Redemption of Storage Credits in the Lower Division States, 62 Fed.

Reg. 684,911 (Dec. 31, 1997). Arizona has authorized water banking. Irrigators may reduce

ground-water pumping, receive subsidized Central Arizona Project water and thus "sell" its

unneeded water in Nevada and California, possibly at prices to recoup its expenditures. See ARIZ.

REV. STAT. �� 45-2401 to 45-2472. See also David Getches, Colorado River Governance:

Sharing Federal Authority As An Incentive to Create A New Institution, 68 U. COLO. L.

REV. 573, 615 (1997).

n46 See Reed D. Benson, Recommendations for an Environmentally Sound Federal Policy on

Western Water, 17 STAN. ENVTL. L.J. 247 (1998).

n47 "The emphasis on the protection of fish and migratory water fowl is one of the most dramatic

changes in Federal water policy since 1973 and is leading to a more holistic focus on the restoration

and maintenance of healthy aquatic ecosystems." Water in the West, supra note 36, at 3-78. The

case that watershed degradation is a principal, but under-appreciated, cause of ecosystem

deterioration is well documented in Henry B. Lacey, Dancing in Place: The Clinton

Administration and Aquatic Ecosystem Protection in the Pacific Northwest, 36 NAT. RES. J.

539 (1996). Recent Texas legislation illustrates the increasing weight given to aquatic ecosystem

protection in water allocation planning and decisionmaking. In 1997, Texas enacted legislation which

explicitly recognizes the need to accommodate aquatic ecosystem maintenance and restoration with

traditional consumptive uses. TEXAS WATER CODE ANN. � 11.046 requires that surplus water

be returned to the stream where it is subject to reservation "to provide flows for instream uses or

bays or estuaries." The state's new interbasin transfer (or more accurately area of origin protection

statute) requires the state Natural Resource Conservation Commission evaluate, inter alia, the

reasonably expected effects of a transfer on "aquatic and riparian habitat and bays and estuaries. . .

." TEXAS WATER CODE � 11.085(k). See generally Natural Resources Law Center, University

of Colorado, RESTORING THE WATERS (May, 1997); SANDRA POSTEL, LAST OASIS:

FACING WATER SCARCITY (1997); Robert W. Adler, Barriers to Watershed Protection, 25

ENVTL. L. 973 (1995), Reed D. Benson, A Watershed Issue: The Role of Streamflow

Protection in Northwest River Basin Management, 26 ENVTL. L. 175 (1996).

n48 The on-going Bay Delta process is an example of partnership federalism. See A. Dan Tarlock,

Federalism Without Preemption: A Case Study in Bioregionalism, 27 PACIFIC L.J. 1629,

1641-44 (1996).

n49 KAREN PIPER, COLONIZING WATER: L.A. AND ENVIRONMENTAL JUSTICE 37

(undated) (manuscript on file with author and quoted with permission of author).

n50 See SARAH BATES, ET AL., SEARCHING OUT THE HEADWATERS: CHANGE AND

REDISCOVERY IN WESTERN WATER POLICY 137 (1993)

n51 It has been easier for communities to use their delegated land use powers to control

groundwater contamination, because communities can control the potential sources of the

contamination. See LINDA A. MALONE, ENVIRONMENTAL REGULATION OF LAND

USE � 9.05 (1990).

n52 This rule now has a constitutional dimension. State statutes that limit the interstate use of water

presumptively violate the dormant commerce clause. See Sporhase v. Nebraska, 458 U.S. 941

(1982).

n53 This attitude is on display in Pyramid Lake Paiute Tribe of Indians v. Washoe County, 112 Nev.

743, 918 P.2d 697 (1996), which holds that the state's public interest review statute, NEV. REV.

STAT. � 533.370(3), places no duty on the state engineer to evaluate alternatives to an inter-basin

transfer. The majority refused to incorporate Idaho law, which requires the state engineer to examine

the local public interest in approving new appropriations, into the statute or into the state's public

trust doctrine. The court reasoned that Nevada law delegates the choice among "competing methods

of water augmentation" to county officials and thus the over-worked "state engineer has no express

authority to engage in comparative economic analysis of water delivery systems." 918 P.2d at 701.

Two justices dissented arguing that the state engineer had a duty to investigate alternatives under

state law and his duties as trustee of the state's waters.

n54 This no longer the case. The use of water to support instream flows is beneficial and many states

now allow appropriative rights to be perfected for this use without a diversion. See (Lawrence J.

MacDonnell and Teresa A. Rice, eds.,) INSTREAM FLOW PROTECTION IN THE WEST

(Revised ed. 1993). However, minimum flow protection remains extremely controversial in many

western states. For example, Washington state permits the Department of Ecology to set minimum

flows for the state's streams and lakes, subject to existing rights for fish and wildlife protection,

recreation and the maintenance of aesthetic values. See WASH. REV. CODE ��

90.22.010-90.22.030; see also Hertz v. State, 86 Wash. App. 102, 936 P.2d 24 (1997) (holding

that groundwater permits may be conditioned to prevent pumping when connected stream level falls

below state stream flow levels because rights would be junior to state minimum flows which are

"treated as appropriations").

n55 See North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir. 1997).

n56 See id. at 1190-91.

n57 See id. at 1193.

n58 Id. at 1191.

n59 Id. at 1193.

n60 For a history of this development in New Mexico see IRA G. CLARK, WATER IN NEW

MEXICO: A HISTORY OF ITS MANAGEMENT AND USE 100-14 (1987).

n61 See Barbara T. Andrews & Sally K. Fairfax, Groundwater and Intergovernmental Relations

in the Southern San Joaquin Valley of California: What are All These Cooks Doing to the

Broth?, 55 U. COLO. L. REV. 145 (1984).

n62 FRANK I. MICHAELMAN & TERRENCE SANDALOW, MATERIALS ON

GOVERNMENT IN URBAN AREAS 314 (1970). This analysis is developed at greater length in

Terrance Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts,

48 MINN. L. REV. 643 (1964).

n63 Occasionally courts have had to remind powerful irrigation districts that they are subject to

water law. See Imperial Irrigation Dist. v. State Water Resources Control Bd., 275 Cal. Rptr. 250

(Cal. Ct. App. 1990), cert. denied, 502 U.S. 857 (1991) (holding that IID is not immune for

anti-waste requirements of beneficial use).

n64 See Snow v. Ablos, 18 N.M. 681, 140 P. 1044 (1914).

n65 See also County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185, 139 Cal. Rptr. 396

(1977) (holding that county objections to inadequate EIR discussion of local adverse environmental

impacts from Los Angeles' groundwater extraction not subject to judicial review).

n66 Stanley Crawford, Dancing for Water, 32 J. AMERICAN WEST 265 (1990). See also

Crawford, MAYORDOMO (1987).

n67 For an early criticism of the tendency to divorce water planning from issues of price,

conservation and the reallocation or more efficient use of existing supplies see JACK

HIRSCHLEIFER, ET AL., WATER SUPPLY: ECONOMICS, TECHNOLOGY, AND

POLICY 310-35 (1960).

n68 See HUMPHRY W. WOOLRYCH, A TREATISE ON THE LAW OF WATERS AND

SEWERS (London 1830).

n69 The leading water cases include Lukrawka v. Spring Valley Water Co., 146 P. 640 (Cal. 1915)

and Crownhill Homes, Inc. v. City of San Antonio, 433 S.W.2d 448 (Tex. 1968).

n70 The leading cases are Robinson v. City of Boulder, 547 P.2d 228 (Colo. 1976) and Delemarva

Enter., Inc. v. Mayor and Council of the City of Dover, 282 A.2d 601 (Del. 1971).

n71 See, e.g., Swanson v. Marin Mun. Water Dist., 128 Cal. Rptr. 485 (Cal. Ct. App. 1976). The

law and literature is discussed in A. Dan Tarlock, Western Water Law, Global Warming, and

Growth Limitations, 24 LOY. L.A. L. REV. 979, 1010-11 (1991); Note, Duty of a Public

Utility to Render Adequate Service: Its Scope and Enforcement, 62 COLUM. L. REV. 312

(1962); Dennis J. Herman, Note, Sometimes There's Nothing Left to Give: The Justifications

for Denying Water Service to New Customers to Control Growth, 44 STAN. L. REV. 429

(1992).

n72 Frank J. Trelease, Preferences for the Use of Water, 27 ROCKY MTN. L. REV. 133, 140

(1957).

n73 The first step is the time at which other appropriators are given reasonable notice of the intent to

appropriate. See Elk-Rifle Water Co. v. Templeton, 484 P.2d 1211, 1215 (Colo. 1971); City of

Aspen v. Colorado River Water Conservation Bd., 696 P.2d 758, 764 (Colo. 1985).

n74 City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 37 (Colo. 1996). The anti-speculative

limitation on appropriation was given its fullest articulation in Colorado Water Conservation Dist. v.

Vidler Tunnel Water Co., 197 Colo. 413, 594 P.2d 566 (1979), but it lies in the anti-monopoly

origins of the doctrine of prior appropriation.

n75 City and County of Denver v. Sheriff, 96 P.2d 836, 841 (Colo. 1939).

n76 See, e.g., City and County of Denver v. Northern Colo. Water Conservancy Dist., 130 Colo.

375, 276 P.2d 992 (1954) (finding insufficient diligence).

n77 See, e.g., Orchard Mesa Irrigation Dist. v. City and County of Denver, 511 P.2d 25 (Colo.

1973); Colorado Water Conservation Dist. v. Vidler Water Co., 594 P.2d 566 (Colo. 1979).

n78 See COLO. REV. STAT. � 37-92-305(9)(b).

n79 See Thornton v. Bijou Irrigation Co., 926 P.2d at 42.

n80 See City and County of Denver v. Colorado River Water Conservation Bd., 696 P.2d 730,

745 (Colo. 1985).

n81 Supra note 79, at 225.

n82 Id.

n83 See supra note 44.

n84 Ed Marston, Ripples Grow When a Dam Dies, HIGH COUNTRY NEWS, Vol. 26, Oct. 31,

1994.

n85 See Parsons & Mathews, The Californization of Arizona Politics, 30 NAT. RES. J. 341

(1990) (arguing that the state's groundwater law follows Los Angeles' pattern of keeping water

supply ahead of population growth to serve elite urban growth values).

n86 See Department of Water Resources, Water Regulations, Article 7, Assured and Adequate

Water Supplies (February 7, 1995).

n87 Id. � R12-15-703.

n88 Id. � R12-15-707.

n89 A trial judge had the temerity to declare an exaction levied by the city of Scottsdale

unconstitutional because the anticipated benefits from the city's ill-fated acquisition of a water ranch

in Western Arizona. See INSTREAM FLOW PROTECTION IN THE WEST supra note 54, at

Chapter 9 for a history of the acquisition of the ranch, were speculative. However, the Supreme

Court upheld the fee as a rational legislative choice even though the statutorily required developer

benefits would occur in the future because cities need the flexibility to make long range water supply

plans. Home Builders Ass'n of Cent. Ariz. v. City of Scottsdale, 930 P.2d 993, 996 (Ariz. 1997). It

also held that the roughly proportional test of Dolan v. City of Tigard, 512 U.S. 374 (1994), did not

apply to generally applicable legislative exactions as opposed to regulatory leveraging. See also

Ehrlich v. City of Culver City, 12 Cal. 4th 854, 911 P.2d 429 (1996), cert. denied, 117 S. Ct. 299

(1996).

n90 See A. Dan Tarlock, The Creation of New Risk Sharing Regimes: The Case of the

Truckee-Carson Settlement ___ Ecology L.Q. ___ (1999) (forthcoming). The area recently won

an important round in its efforts to limit transfer from the District to the wetlands area. Churchill

County v. Babbitt, 150 F.3d 1072, 1077 (9th Cir. 1998) holds that local governments have standing

to challenge the scope of an environmental impact statement so long as the government demonstrates

a reasonable probability that the challenged action threatens concrete governmental interests.

n91 BATES, ET AL., SEARCHING OUT THE HEADWATERS, supra note 50.

n92 The history of the Los Angeles water and land grab has been told in the movie Chinatown, and

in several excellent histories. ABRAHAM HOFFMAN, VISION OR VILLAINY: ORIGINS OF

THE OWENS VALLEY-LOS ANGELES WATER CONTROVERSY (1981); WILLIAM

KAHRL, WATER AND POWER: THE CONFLICT OVER THE LOS ANGELES' SUPPLY IN

THE OWENS VALLEY (1982); JOHN WALTON, WESTERN TIMES AND WATER WARS:

STATE, CULTURE AND REBELLION IN CALIFORNIA (1992).

n93 Douglas Grant, Public Interest Review in Water Allocation and Transfer in the West:

Recognition of Public Values, 1987 ARIZ. ST. L.J. 681.

n94 National Audubon Soc'y v. Superior Court (Alpine County), 33 Cal. 3d 419, 446, cert.

denied, 464 U.S. 977 (1983).

n95 See Ensenada Land and Water Ass'n v. Sleeper, No. RA-84-53(c) (Dist. Ct. Rio Arriba

County, N.M. June 2, 1985).

n96 See id.

n97 Id. at 34-36.

n98 See Sleeper v. Ensenada Land & Water Ass'n, 107 N.M. 494, 498, 760 P.2d 787 (1988),

cert. quashed, 107 N.M. 413, 759 P.2d 200 (1988); The Milagro Beanfield War Revisited in

Ensenada Land & Water Association v. Sleeper: Public Welfare Defies Transfer of Water

Rights, 29 NAT. RESOURCES J. 861 (1989).

n99 See Charles T. DuMars & Michele Minnis, New Mexico Water Law: Determining Public

Welfare Values in Water Right Allocation, 31 ARIZ. L. REV. 817 (1989).

n100 National Research Council, Water Transfers in the West: Efficiency, Equity, and the

Environment (1992).

n101 Id. at 4.

n102 BROWN & INGRAM, WATER AND POVERTY IN THE SOUTHWEST 187 (1987).

n103 Daniel B. Rodriguez, The Role of Legal Innovation in Ecosystem Management:

Perspectives from American Local Government Law, 24 ECOLOGY L.Q. 745, 767 (1997).

n104 See George Homsy, Liquid Gold, 63 PLANNING, No. 5, at 10 (May, 1997).

n105 Baldwin v. County of Tehema, 31 Cal. App. 4th 166, 181, 36 Cal. Rptr. 2d 886 (3d Dist.

1994), review denied.

n106 COLO. REV. STAT. � 24-65.1-501.

n107 City of Colorado Springs v. Board of Comm'rs of Eagle County, 895 P.2d 1105, 1115 (Colo.

Ct. App. 1994), cert. denied, 1995 Colo. Lexis 443 (Colo. 1995), cert. denied, 116 S. Ct. 564

(1995).

n108 Cf. Interstate Commerce Comm'n v. Oregon Wash. R.R. and Navigation Co., 288 U.S. 14,

43 (1932) (Cardozo, J. dissenting).

n109 See James Rossi, The Common Law "Duty to Serve" and the Protection of Customers in

an Age of Competitive Retail Public Utility Restructuring, 51 VAND. L. REV. 1233 (1998).

n110 This assumes that new entrants to a community do not have an absolute right to enter, and thus

communities have the discretion to decide the rate and spatial distribution of new entrants. A

municipal timing scheme was upheld against a right to travel argument in Construction Industry Ass'n

v. City of Petaluma, 522 F.2d 897, 908 (9th Cir. 1975), cert. denied, 112 S. Ct. 934 (1976), but

cities may be subject to equal protection, Beck v. Town of Raymond, 394 A.2d 847 (N.H. 1978),

and statutory, see, e.g., CAL. GOV'T CODE � 65302.8, duties not to discriminate against

newcomers. See Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal

Analysis, 86 YALE L.J. 385, 455-57 (1977).

n111 See Robinson v. City of Boulder, 547 P.2d 228 (Colo. 1976).

n112 See Dateline Builders, Inc. v. City of Santa Rosa, 146 Cal. App. 3d 520, 530, 194 Cal. Rptr.

258, 265 (1st Dist. 1983).

n113 See Serpa v. County of Washoe, 111 Nev. 1081, 1084, 901 P.2d 690, 692 (1995).

n114 See id.

n115 See Illinois Cent. R.R. Co. v. River & Rail Coal & Coke Co., 150 Ky. 489, 150 S.W. 641,

642-43 (1912) (common carrier has a duty to carry amount of freight commensurate with

expectations generated by carrier).

n116 The duty was not recognized for common carriers when no contractual relationship existed

with a carrier, Little Rock & Fort Smith Ry. Co. v. Conaster, 61 Ark. 560 (1896), where the goods

where offered to a carrier outside its defined service area, Bullard v. American Express Co., 107

Mich. 695, 65 N.W. 551, 552 (1895), or where a strike prevented the transportation of the goods,

Gage v. Arkansas Cent. R.R. Co., 160 Ark. 402, 254 S.W. 665, 665-66 (1923).

n117 See, e.g., Bond v. Starkey, 180 Ky. 50, 201 S.W. 461 (1918) (telephone company may deny

service to physician who used "profane" language); Nelson v. Boldt, 180 F. 779, 782 (E.D. Pa.

1910) (hotel could refuse service to prize fighter who violated criminal laws).

n118 See People of State of New York ex rel. Woodhaven Gas Light Co. v. Public Serv., 269 U.S.

244, 248-49 (1925).

n119 See Levitt v. Public Utilities Comm'n, 114 Conn. 628, 159 A. 878, 879 (1932); Interstate

Commerce Comm'n v. Oregon Wash. R.R. and Navigation Co., 288 U.S. 14 (1932).

n120 See Re Competitive Opportunities Regarding Elec. Serv., Case 94- E-0952, 168 PUR 4th

515 (1996).

n121 Id. at 532.

n122 See IDAHO CODE � 42-221(1); CAL. WATER CODE �� 10910-10914.

n123 Riebsame, Land Use Trends, supra note 10 at 94-95 reports that officials are concerned

about the maintenance of canal distribution systems as canals are rerouted and ground water

recharge.

n124 IDAHO CODE � 42-202B(5).

n125 Id. � 42-202B(6).

n126 Id. � 42-202B(5).

n127 In 1981 the United States Department of Agriculture published the NATIONAL

AGRICULTURAL LANDS STUDY which identified a farmland "crisis." However, agricultural

economists have discounted any food or fiber threat from farmland loss, but Riebsame, Western

Land Use Trends, supra note 10 at 75-76, argues that farmland conversion can be an important

local issue because of the combination of crop losses, local economic and cultural disruption and the

loss of open space and valuable wildlife habitat and other potential ecosystem loses.

n128 See Riebsame, Western Land Use Trends, supra note 10, at 108.

n129 See id.

n130 See CAL. WATER CODE �� 10910-10914. The legislation was originally backed by East

Bay Municipal Utility District (EBMUD), which had a strong "responsible growth" board that

opposed a large development. New elections produced a more pro-growth board, but EBMUD

supported legislation to tighten the link between water and land use planning issues. HB 1476

required that all local sphere of influence and local boundary decisions include a determination of

sufficient available water supplies to service proposed development in the area. However, the

sponsor of the bill withdrew it in the face of building industry opposition. For a full discussion of the

purpose of the legislation and reasons for its withdrawal, see William Fulton, Sacramento Yields

Few Big Bills in '98 Session, 13 CALIFORNIA PLANNING AND DEVELOPMENT REPORT

1 (August 1998).

n131 California Environmental Quality Act, CAL. PUB. RES. CODE �� 21000-21178.1 (1997).

n132 See Stanislaus Natural Heritage Project v. County of Stanislaus, 48 Cal. App. 4th 182, 55

Cal. Rptr. 2d 625, 635 (5th Dist. 1996), reh'g denied, 49 Cal. App. 4th 727 (1996), rev. denied,

1996 Cal. LEXIS at 6466 (Cal. App. Nov. 13, 1996); see also Serpa v. County of Washoe, 901

P.2d 690, 692 (Nev. 1995).

n133 See id.

n134 County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185, 203, 139 Cal. Rptr. 396

(1977).

n135 See County of Inyo v. City of Los Angeles, C004068, (3d Dist. 1997) (unpublished order

discharging preemptory writ of mandate issued August 6, 1993).

n136 See City of Los Angeles v. County of Inyo, Case No. 12908 (Super. Ct. Inyo County,

Cal.1997).

n137 The factors include the size, location and use of the affected area, the permanency of the

change and a comparison of the change in the affected area with the conditions of other areas

impacted by groundwater pumping. See id. at 19.

n138 See BATES, ET AL., SEARCHING OUT THE HEADQUARTERS, supra note 50, at 26.

n139 See id. at 83.

n140 See Donald Snow, River Story: A New Chapter for Montana's Clark Fork, 1

CHRONICLE OF COMMUNITY 17 (1996).

n141 Brown & Ingram, supra note 102, at 192.

n142 See supra note 92.

n143 Oversight Hearing on Public Law 101-618, The Fallon Paiute Shoshone Water Rights

Settlement Act of 1990 and The Truckee-Carson-Pyramid Lake Water Rights Settlement Act

Before the Subcomm. on Water and Power of the Comm. on Energy and Natural Resources, 103d

Cong. (statement of Elizabeth Ann Reike, Asst. Sec'y, Water and Science, U.S. Dept. of Interior)

(1994).

n144 Central Valley Project Improvement Act of 1992, Pub. L. No. 102-575 � 3405(1), 106 Stat.

4600, 4709 (1992).

n145 Id. � 3405(1)(F).

n146 For a good survey of the exceptions to the rule that there are no restrictions of the locus of use

see GEORGE A. GOULD & DOUGLAS L. GRANT, CASES AND MATERIALS ON WATER

LAW 86-89 (5th ed. 1995).

n147 See CAL. WATER CODE � 10505.

n148 See Id. � 11460.

n149 United States National Water Commission, WATER POLICIES FOR THE FUTURE:

FINAL REPORT TO THE PRESIDENT AND TO THE CONGRESS at 328 (1973).

n150 See MacDonnell, et al., Developing Area-of-Origin Compensation, Research Report,

Natural Resources Law Center, U. of Colo. School of Law (Dec. 1985).

n151 Compare City of Fresno v. California, 372 U.S. 627, 630 (1963) with California v. United

States, 438 U.S. 645, 664-65 (1978).

n152 See United States v. State Water Resources Control Bd., 182 Cal. App. 3d 82, 227 Cal.

Rptr. 161 (1986).

n153 See Grant, supra note 93.

n154 See Bonham v. Morgan, 788 P.2d 497 (Utah 1989).

n155 See Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946, 954 (1993) (upholding the power of

the State Engineer to impose conditions on diversions from the critical habitat of a candidate fish for

listing under the Endangered Species Act).