THE CASEY JARMAN LAW REVIEW MINI-SYMPOSIUM (April 1, 2000)

by

Jean Campbell and Adrienne Yoshihara, Class of 2000

Foreword

Dear Reader:

Professor Jarman's "creative writing" assignment proved valuable for four reasons.  First, it challenged us to learn the obvious:  that non-legal theories provide alternative frameworks for analyzing environmental policies, laws, and the consequences that flow from these policies and laws.  We chose Garrett Hardin's theory of "The Tragedy of the Commons" only after reviewing several other theories with possible application to our problem (the United States western states waters).  Second, it required the application of a non-legal theory to an environmental law or policy, which inherently required the expansion of research, and knowledge, beyond the confines of the law library and Westlaw (e.g., a trip to the social and physical sciences library!).  Two years of law school is enough to narrow one's perspective and to forget that other disciplines exist for the purposes of legal problem solving.  Third, it demonstrated firsthand the problems of superimposing any framework -- legal or those of other disciplines -- onto an environmental issue.  And finally, it was fun.  The assignment itself was a problem to be solved:  which environmental law or policy was to be analyzed, with which theory, and through what medium or format was the analysis to be presented?

Jean Campbell and Adrienne Yoshihara

Garrett Hardin: On Western Water As a Commons

December 13, 1999 marked the thirty-first anniversary of the publication of Garrett Hardin’s article, "The Tragedy of the Commons."  To commemorate this auspicious event, the Casey Jarman Law Review presents a mini-symposium on Professor Hardin’s most recent public forays during which he commented on the applicability of his influential theory -- i.e., natural resources as commons under attack -- to the problems of western water[1] and this resource’s attendant federal policies.

Professor Hardin’s comments regarding the micro effects of historic western water policy are contained in the symposium’s first article, "Damn Those Dams!"  These comments are the result of a chance meeting between two giants of their respective fields: Professor Hardin, famed biologist and ecological commentator, and Marc Riesner, western water expert and author of the critically acclaimed book on the history of western water, The Cadillac Desert.  These two gentlemen met a few days before the 2000 Western Public Interest Environmental Law Conference and exchanged thoughts on the current tragic state of western water.  The comments from this exchange were recounted by Mr. Riesner to fellow 2000 Conference delegate, Jean Campbell, who has graciously agreed to recapitulate that exchange for this symposium.

The symposium’s second article contains the entire record of the United States Senate Committee on Energy and Natural Resources, December 1, 1999, morning session hearings on "Western Water Policy for the 21st Century."  Senator Murkowski, Chairman of the Senate Committee, invited Professor Hardin to be the key commentator on the President’s recently submitted western water policy proposal.  This proposal, drafted by the Western Water Policy Review Advisory Commission (WWPRAC), is part of the WWPRAC’s final report to the President.  In his comments, Professor Hardin critiques the macro aspects of the proposed western water policy and provides a glimpse of the policy he would support were it ever to arise in Congress.

As indicated in both articles, Professor Hardin’s public appearances are rare events these days.  Also, implicit in both articles is recognition that translating a biologist’s essentially ecological theory into government policy and laws can be problematic.  Still, the brevity and elegance of Professor Hardin’s theory continues to urge both lawyers and lawmakers to make the unpopular decisions and find the "mutually coercive mutually agreed upon" solutions necessary to the preservation of our "commons" of western water.

Respectfully,

Jean Campbell, Symposium Co-Editor

Adrienne Yoshihara, Symposium Co-Editor

Damn Those Dams

Transcription by Jean K. Campbell

At a small sidewalk café in Eugene, Oregon, days before the 2000 Western Public Interest Environmental Law Conference, Garrett Hardin sat enjoying an avocado sandwich in an infrequent sunbeam.  Garrett wasn’t involved in the conference but was interested in this year’s theme, 6 Billion Downstream, and how these young upstarts who call themselves environmentalists would interpret such a theme.  Garrett had been both pleased with the strides made in environmental protections over the last few years and also disappointed that no one else seemed to have picked up the theory he posited in his essay, "The Tragedy of the Commons," published back in 1968, and taken it to a next level as he had hoped.  As the conference drew nearer, he grew more excited to hear what the latest batch of legal scholars had to say about the law and the environment.  For the moment, however, he was simply content with his delicious avocado sandwich and a glimpse of the Oregon sun.

Blocks away, Marc Riesner was on the phone in a friend’s basement talking to a group in the Bay Area of California.  This group considered themselves the latest environmental terrorists and was hoping to dynamite a dam on a tributary of the Sacramento River.  The dam was scheduled to be taken down by its owner, Pacific Gas & Electric, under a recently signed memorandum of agreement, but the group wanted to make a point, mostly just that they could blow something up.  The group figured if the dam was coming down anyway, no one would be hurt if they dynamited it and the act would show the establishment what the group was capable of.  Marc, being a sizable force in the Western water world, felt an act such as this would be a terrible step backward, undermining this important milestone in the effort to restore migratory fish habitat in California.  Needless to say, this was a stressful call, but as he hung up the phone, Marc was confident that he had talked some reason into his friend on the other end of the line.  Marc was badly in need of some fresh air and a delicious avocado sandwich as a result of his long distance intervention.  Marc hated himself for this avocado addiction he had; most of the commercial avocados in the United States come from Southern California farms which use the subsidized water he rallied against.  Nonetheless, Marc was truly addicted to the avocado’s buttery smoothness, especially in times of stress.  He figured he had earned this sandwich during the last hour on the phone and there was a bit of sun out.  Being a resident of San Francisco, he was accustomed to clouds and fog, but this stuff in Eugene was too much even for him.  Luckily it was only days until the conference he had come to attend.  Remembering a sidewalk café he had seen just down the road, Marc went out for his fix.

At the sidewalk café, Granola Haven, Marc stepped up to the counter and ordered his avocado sandwich on 9-grain bread with all the fixings.  The girl behind the counter replied, "I’m sorry sir but we’re out of avocado.  That gentleman at the table outside got the last of our avocado.  Can I get you something else?  How about our special, grilled Pacific Salmon on a bed of fresh garden greens?"  Marc was devastated.  He didn’t condone eating salmon either, but figured he was entitled to a little sin since not only had he helped to save the habitat of the Chinook Salmon in California but he now had to recover from the lack of avocado in this time of personal crisis.  Hopefully the farmer had grown the garden greens with rainfall.  They certainly get enough of it up here!

Marc took his salmon salad outside and discovered that not only had the "gentleman" taken the last of the avocado; he also had the last available table outside (the café was crowded with people in town for the conference).  Marc thought this was just too much.

"Excuse me sir, may I share a table with you?  There seems to be nowhere else to sit and I’m told we share an affinity for avocado," Marc said to the single, older man at the sidewalk table.

"Of course," the man replied.  "Sit down."

"Are you in town for the environmental law conference?"  Marc inquired.

"Well, I’m here to attend, yes, but only as a spectator."  The man then introduced himself "My name is Garrett Hardin.  I teach biology at UCSB.  How about you?"

"I’m Marc Riesner.  I’m an author from just up the coast from you, San Francisco.  I’ll be presenting an update on my book, Cadillac Desert.  It’s about water use in the Western United States.  You wrote ‘The Tragedy of the Commons,’ didn’t you?"

"Yes.  Are you familiar with my theory about the dangers of population growth on the use of common resources?"

"Well, I have to admit it’s been a while since I last read your article but I am sort of familiar with the ideas you presented.  I think you’d be really interested in my book.  It discusses the history of water use and abuse in the Western U.S. and how a few interest holders, both private and governmental, have made all the wrong decisions about taking control of water and reclaiming deserts for farming.  Have you read the book?"

"Yes I have.  The thing I love most about being a professor is hearing students, as writers and thinkers, talk about their work.  Do you have some time to tell me about your book?"

Marc looked at his watch.  He quickly tallied his errands for the afternoon.  The main job was to complete his presentation for the conference.  Perhaps an in-depth discussion with the God of theories about the allocation of resources would be a worthy endeavor.

"I do.  Do you want another cup of coffee before I dive in?"

"No, don’t drink the stuff.  Go ahead," Garrett responded.

"Well, it all started back shortly after the turn of the century.  In fact an important anniversary just passed.  November 5, 1913, was the day water first passed through the Los Angeles Aqueduct bringing water from the Owens Valley to the San Fernando Valley and forever changing the perception and policy surrounding water use in the Western U.S.  As you know, most of the Southwestern U.S. is basically desert.  As you move further north and east, the landscape changes to high desert, but much of the area is desert nonetheless.  Very little of the area is productive farmland in its natural state.  Most of the major rivers in the area are not suitable for irrigation farming on a small scale, like the rivers in the East are, because Western rivers are apt to sit far down inside canyons with very steep walls.  This makes it very difficult to move water up out of the river to irrigate a field nearby, especially a large field.  Despite this fact, the U.S. government encouraged millions of people to move westward and settle the western portion of the continent.  I’m sure you know enough of American history that I don’t need to explain all this to you, but the significant aspect of this settlement is that it created a need for water.  Human society requires water to thrive in any significant concentration.  Water is needed not only for individual use but also to grow the crops needed to support society.  There was a strong belief in Manifest Destiny and personally I think there still is even today.  Even if you don’t want to call this drive to make the deserts into fruitful farmlands Manifest Destiny, the effect is the same.  The new Western American was driven to bring water to the desert and grow things there both for himself and for his animals.

The Los Angeles Aqueduct was the first major public water project built and it has since been dwarfed many times over.  To make a very long and complicated story short, what happened was that the City of L.A., by its Water and Power Department, stole the water rights and then the water itself from the Owens Valley which lies to the east of the Sierra Nevada Mountains.  L.A. Water and Power built an aqueduct to carry this water through the desert and over mountains to water the city of L.A. and allow it to develop into the mega-polis that it is today.  What many people failed to realize about this project, both then and still today, is that the vast majority of the water went to farmers, mainly large farmers, in the San Fernando Valley.

While it is easy to point to green lawns and fountains in Phoenix and say that is the perversity of Western water use, the most egregious water use is done quietly on federally subsidized farms from North Dakota to Southern California.  In most metropolitan areas like Phoenix and L.A., urban dwellers are paying close to the actual cost of the water they use.  While I certainly don’t condone the false "edens" these cities in the desert have created, they are far from the greatest evils in the entire scheme of water control in the West.  Farming where farming doesn’t belong is the greatest evil.

America has been in love with agriculture from the very start of Western settlement.  Early monks at missions across California began irrigating fields on a small scale.  Then came the Mormons to settle Utah.  Mormons really modernized the art and science of irrigation and brought larger and larger fields under irrigation.  As farmers across the West began to tax their wells to their limits, engineers stepped onto the scene to open up possibilities in irrigation those early settlers could never even have imagined.  After the failure of many small (by today’s standards) irrigation companies, the Congress passed the Reclamation Act of 1902.  After various weather events in the late 1880s and 90s, the need for a consistent water supply in the Western states was clear, if indeed settlement was to continue.  The Act established the Reclamation Service that became the Bureau of Reclamation in 1923.  I’ll just call it the Bureau for simplicity’s sake.

The basic purpose of the Bureau was to employ the best engineers to build the public works projects needed to bring land under cultivation.  To "reclaim" the desert.  If you’ll allow me one deviation here I just need to comment; I find it so ironic that the definition of reclaim and reclamation are so different. According to a legal dictionary, to reclaim means to demand the return of something that one owned but which was "parted with conditionally or mistakenly."  Reclamation, on the other hand, means "the process of bringing economically unusable land to a higher dollar value by physically changing it."  Certainly, no human owned the higher dollar value of irrigated desert land in a state in which it has not yet existed so as to be able to "reclaim" it!

That aside, through my research, I discovered that the objectives of the Federal Reclamation Program were to stabilize and stimulate local and regional economies, to enhance and protect the environment, and to improve the quality of life through the development of water and related land resources.  Obviously, the Bureau focused more on the development of water than the protection of the environment.  What many people also don’t realize is that the Bureau also overlooked the economics of this development.  The Act had requirements that projects basically pay for themselves through the sale of the water or power they "created."  This however, was virtually never managed.  Most of the water that was sold to farmers was sold at extremely reduced prices, creating a virtual welfare state in Western agriculture.  Most of the farmers getting this highly subsidized water were large corporations, many of whom were growing the same crops that the government was paying a farmer in Illinois not to grow!

Because of America’s reverence for the farm, we pay for subsidized water to irrigate farms in areas that are totally unsuitable for any sort of agriculture, basically just because we can.  The engineers at the Bureau dreamed up grander and grander projects and then got into a race with the Army Corps of Engineers to build a bigger and better project than the other guy.  As a result of huge egos more than real need, we now have hundreds of dams throughout the West.  Hoover Dam on the Nevada-Arizona border was the first of the true mega-dams.  It overshadowed the L.A. Aqueduct exponentially, but it was soon followed but such other mega-projects as Grand Coulee Dam in Washington and the Glen Canyon Dam in Arizona.  Every major river in the West has at least one dam backing it up at some point along its route.  As the better locations were dammed and the race to build more projects continued, dams were put in at less and less suitable locations with more and more tenuous needs for either water or power projects.  This ego-driven race claimed as its victims many small riverside communities whose lands were flooded behind dams and many species of plants and animals whose habitats were altered beyond usefulness.  Among the more drastically affected species were salmon which migrate up stream to reproduce but which cannot get past a dam and migratory waterfowl that rely on riverside wetlands along their migration routes, many of which were destroyed by the creation of great lakes behind huge dams.  On a few occasions, dams built solely to beat the other guy to it, built in unsuitable locations or downright unsafe locations, actually failed and wiped out whole towns and many lives downstream in tremendous floods.

The agriculture that resulted from all this water control and development has not turned out to be particularly productive in the long term either.  Some of the problem is that farmers are trying to grow the wrong crops in the wrong areas.  Alfalfa does not grow well in the North Dakota climate but it is one of the crops favored by Reclamation Program farmers so they keep at it.  Another problem is increasing salinity levels in both the water and the soil of the fields.  As rivers flow they pick up salts from the soils the water travels through.  When the water is channeled in an aqueduct or held in an artificial lake in the arid desert, a tremendous amount of water is lost to evaporation, leaving the salt behind.  As this salty water is poured over a field it not only deposits salt in the field, but also creates a very salty runoff which is usually returned to the river.  Therefore, not only do dangerously high levels of salt accumulate in the fields but the river water itself becomes so salty that it is almost unusable.  In fact, desalinization programs have been instituted at the southern end of the Colorado River just before it enters Mexico in order not to destroy Mexico’s agriculture and to keep international peace along the border.

Well, I think you get the gist of my book from this brief summary.  I detail many of the water projects and in some cases the tragedy that has resulted when dams fail.  Although, I think you can see that in many cases I think it is a tragedy when a dam is allowed to stand.  Luckily, the notion that dams are the saviors of the arid West is passing, albeit slowly.  In fact, several dams have been or are in the process of being taken down across the country.  Due to public pressure and lawsuits, L.A. is even returning water to the Owens Lake in an attempt to improve environmental conditions in the Valley.

My book also looks at many other aspects of Western water policy.  It discusses problems of overdraft from aquifers, Ogallala in particular.  It also explains some of the more outrageous projects that were proposed but never built, including one to divert the Yukon River in Alaska and the Fraser River in British Colombia to the American Southwest.  Can you believe that?  Anyway, that’s beyond what I’ll be talking about in my presentation for the conference.  Refresh my memory about your theory.  It’s been a while since I read the article," Marc requested.

"Well, I wasn’t thinking about water when I wrote it, if you recall.  I wrote about human population.  The starting point of my theory is the fact that the resources of the world are finite.  Most people never stop to think about that fact, even today.  Secondly, I posit that there are some problems for which there are no technical solutions.  Mankind is terribly inventive and clever but I don’t believe we can invent a gizmo or a procedure to solve every problem, especially problems based on finite resources.  For some problems the only solution is a change in people’s values and morality.  Most people aren’t too keen on these kinds of solutions, though, because they often require that people give up some form of privilege.  People are in love with technology partly because it is sexy and exciting but partly also because technological solutions grant us more privileges rather than cause us to sacrifice what we already have.  The next tenet of my theory is one I think is especially applicable to the history you have described: maximum use does not always equal maximum good.  Oftentimes, especially with limited resource situations, optimum use is going to be less than the maximum possible use.

In order to save the commons from overuse, we need to exorcise what Adam Smith has called the invisible hand.  This theory we need to be rid of posits that each individual will make his own decisions but also that these decisions will be directed by this invisible hand and therefore in the best interest of the community.  Smith’s theory is just plain wrong.  You see each individual is out for only his personal gain.  This individual intent does not lead to public good.  Instead it leads to an increase in the usage of common resources without limit, which in turn leads to ruin for all.  That in essence is the tragedy of the commons.  Each user benefits from making the maximum use of a common resource.  When you add up all the individual users in a population like we have in America today, that is a really big number.  In fact, it is often a number that is larger than a common resource can support.  In the long run, freedom in a commons ruins the common.

We can rely neither on individual conscience nor guilt to prevent this abuse of the commons.  The individual reward is there for abuse and neither an intention to do good nor guilt after doing bad are strong enough to prevent the abuse at the start.  Between natural selection and personal greed, the abuser comes out on top.  The person who gives in and doesn’t take his share from the commons loses.

To prevent this ruin of the commons, we need to institute agreed upon limitations on each individual’s use of the common resource.  It is not in any individual’s interest to cut back on his use unless his fellow users are cutting back as well.  Therefore, we need institutions like private property and the law to protect all common resources.  We need to institute what I call mutual coercion.  The only kind of coercion I recommend is mutual coercion, mutually agreed upon by the majority of people affected.  This coercion includes laws that don’t act to prohibit use of a resource but work as carefully biased options, making it increasingly expensive to use the resource, thus preventing the problem of overuse.  Do you follow?" Garrett asked.

"Yes.  So under your theory, public use of the commons really only works when there is more common than there is a need for it, right?"  Marc thought out loud.

"Precisely!  Freedom of the commons is only justifiable in low-density usage.  For example, when the American West was first being settled, there was lots of water, more bison than anyone could count, forests and fish that seemed endless.  With those kinds of resources and a small population, public use of a common resource works.  The same goes whether the common is being used to produce food, as a disposal for pollution, or for pleasure.  Each situation is slightly different of course.  When a common is used to produce food, the danger of depletion is the main concern.  Eat all the fish and there are none left to keep the species alive.  The disposal of pollution brings forth concerns about too much pollution being dumped into a body, be it water, air or the soil, and the body not being able to recover itself.  When I wrote my article there weren’t laws like the Clean Air Act and Clean Water Act that consider the ambient quality of a body in setting the allowable level of pollution discharge.  When the commons are used for pleasure it is usually because they are places that are wonderful because they are wild and unencumbered with humanity.  Today we have perfect examples of commons overused for pleasure.  Have you been to Yosemite or the Grand Canyon in the summer lately?  If so, you know what I mean."

"I’m not meaning to ignore parts of your theory, but portions of it work as a perfect framework for explaining why the Reclamation Act and the western water policy didn’t and couldn’t work," Marc responded.  "I’m thinking of several portions you mentioned.  Certainly your basic premise that resources are finite applies to water.  Not only is there a limited amount of water but the amount humans have access to, even with technology, is certainly limited."

"Not only that but it sounds like with the salt problems, the ability of rivers to cleanse themselves is limited too," Garrett added.  "That would be an example of limitations on the commons as a food source and as a place for the disposal of pollution."

"Yea.  If you were to ask any white water rafter I’m sure she’d say that the rapids left after all this damming are getting more and more crowded, so water as a common for pleasure is also being used up.  I read somewhere recently that people wait years and years on a list just to get a permit for a rafting party on the Colorado through the Grand Canyon," Marc observed.

"From what you’ve told me it certainly sounds like the water supply problems in the West are an example of problems that require a change in values rather than a technological solution.  If we’ve built all these dams and have only succeeded in creating more problems it sounds like we are in need of some mutual coercion."

"You’re right.  It was technology that got us into this mess in the first place.  Engineers built dams and manufacturers came up with irrigation systems and farm machinery that allowed these huge, water-hungry farms to get going.  Now they pollute the rivers and fields with salt and we’ve employed more technology to try to solve that problem, with only very limited success according to my sources in Mexico.  Certainly, in this case, maximum use does not equal maximum good for all."

Garrett picked up that thought, "It sounds like this is definitely a situation where a change in values is needed.  Generally, people are not very quick to embrace these changes in values because such change means they have to give up some of the privileges technology has provided.  Perhaps in this case that would mean taking some of this desert farmland out of cultivation.  I agree with you that America has a special place in its heart for the farmer and to be truthful, a special place in his wallet as well.  This "welfare state" that is created by inappropriate farming using subsidized water fits right in with another facet of my theory.  I proposed that a true "dog eat dog" world cannot exist with humans.  Through our social arrangements and guilt mechanisms we have become dedicated to the welfare state and are just not good at leaving each other out in the cold.  Therefore, it doesn’t surprise me to hear that we subsidize the growing of alfalfa in North Dakota at mere cents on the dollar returns when we could grow the stuff for a fraction of the cost in a place like Illinois where no irrigation is needed.  That is precisely why as humans we need mutual coercion in order to fix situations like this one.  If an individual doesn’t see his neighbor giving up some portion of his share of the privileges then the individual won’t be willing to give up any of his own share either.  In the past, the privatization of property and the enactment of laws have served to create and enforce this necessary mutual coercion.  If a field is privately owned, the owner will control the use by the public, thus protecting it from overuse, at least in theory.  Also, laws can make it too expensive to overuse a resource.  Do you think that would work for water?"  Garrett asked.

"I’m afraid the private property notion has not gotten far in the past.  The whole Owens Valley debacle began with L.A. Water and Power surreptitiously buying up all the water rights to the Owens River and Lake.  In the end, L.A. managed to use the system of private ownership to force their plan on the Owens Valley.  Well, they used that and a few firearms, but you get the idea.  So no, I don’t think private ownership will be the answer here.  I do think that the notion of laws, actually enforced, which make it too expensive to exploit water resources are precisely the answer we are looking for, however.  The Reclamation Act itself contained time schedules for the repayment of loans on projects which, had they been enforced from the get-go, would have prevented much of the development of these dams.  Had the requirement that each project be economically viable been followed, most of the dams could never have been started.  When water is sold to farmers at rock bottom prices, the government has no chance to ever recoup the costs of construction.  This was the situation in virtually every Federal Reclamation Program project.  Despite the rising cost of development and the lessening quality, projects were built and water and power were sold at subsidized prices to farmers.  Often metropolitan consumers paid higher prices, but the amount of water sold to cities was so small in comparison to the amount going into fields that city-dwellers couldn’t possibly be charged enough to compensate for the "welfare water" going to farmers.  So, you are right, we need a law of mutual coercion that takes these farmers off the water welfare rolls and requires that they pay their share.  This, I can guarantee you, would reduce the use of water in the West!  It’s not cheap for the government to get this water into the field and if farmers had to pay the actual cost, they would quickly find ways to cut down on their use or just quit farming the desert altogether.  This would mean losing a huge privilege and would be a major shift in the values of not only the farmers and the Bureau officials, but really for the American public as a whole.  As a society, we still hang tight to that settlement notion that if we can possibly farm a piece of land, we must.  Not to mention we really like our cheap fresh produce.  As a result of this ingrained motivation, we have destroyed all our long grass prairies, salinated our deserts and high plains and rivers, and wiped out countless species and natural areas.  Imagine what would happen if we, as a whole society, changed our collective mind and realized that just because we can cultivate a place doesn’t mean we should."

"Marc, you are catching on to my theory!  Problems with the overuse of limited resources require changes in values, often drastic ones, rather than more technology to find solutions.  We can’t rely on more dams and more aqueducts from further and further away to solve our need for water.  If we keep going at that rate, the next thing you know we’ll start talking about harvesting the polar icecaps."

"Oh, don’t say that.  You’ll give those crazy engineers ideas!" Marc interrupted.

"Anyway, what I mean is that we need to change our notion of what acceptable use is.  That is going to change our quality of life, probably in drastic ways.  Our solutions don’t need to be perfectly just, but they do need to be a change from the status quo.  They will cost us not only money, but some of the privileges we’ve grown accustomed to living with.  Perhaps agricultural products will cost more.  Perhaps our electricity bills will go up.  Maybe we can’t have green golf courses and lawns in the Southwest."

"You’ve hit the nail on the head!  That’s precisely what I was hoping people would get out of my book.  We have transformed the desert so much and for so long that many people have come to believe this is reality.  I tried to remind people of the Hohokum culture that just vanished from the desert long ago.  They set up huge, by the standards of their time, irrigation projects.  Then something happened.  We don’t know what, but the result is they just vanished.  Poof.  I’m not suggesting that with the new millennium our world will come to an end as well, but I am certainly suggesting that we can’t continue at our present use level.  There just isn’t that much water out there."

"It sounds like some form of mutual coercion is needed to limit water use which probably means limiting Western population as well," Garrett harkened back to his original thesis in "The Tragedy of the Commons."  "We need to strive to limit the demand for water and we can do that by limiting the number of people who need water in the dry desert areas and also by changing their attitudes about water, therefore lessening the amount each individual consumes.  You know, I testified recently before the Senate Committee on Energy and Natural Resources about Western water policy for the future."

"Really?  I would like to see a transcript of those proceedings some time if one exists.  I think that is beyond the scope of my presentation for the conference here, but it sure sounds interesting.  You’ve given me a good perspective that I can incorporate into my presentation.  We really seem to be coming from the same place.  It’s encouraging to know that other theorists agree with my perspective."

"Well, I hate to burst your bubble; my article was published back in 1968 and not much has come down in the way of legislation limiting our freedom to breed.  Instead we point to that evil China policy allowing only one child.  Perhaps as a society we’ll be more amenable to reducing water usage than we have been to cutting back on population growth.  But I think you are right about our reverence for the American Farmer as an icon of all that is "mom and apple pie," so I’m not going to hold my breath waiting for real restrictions on water use for agriculture.  Hopefully as more and more of us take up the task of educating the public about the tragedy of the commons, change will come.  I’ll see what I can do about getting you a transcript of the Senate hearing.  I look forward to your presentation."

"Thank you.  It was really an honor to meet you, Garrett."

"Next time we get together, I’ll buy you something other than an avocado sandwich."

"It’s a deal!" Marc replied as he stood to leave.  He noticed that the clouds had once again taken over the Oregon sky and a light drizzle had started to fall.  Nonetheless, in his own head a new day had dawned, sparkling and clear, and he was inspired to head back to his friend’s basement and work out one heck of a power point presentation that would blow away the conference audience.  It would be his own act of dynamiting a dam.

 SENATE COMMITTEE ON ENERGY AND NATURAL RESOURCES HEARINGS: WESTERN WATER POLICY FOR THE 21ST CENTURY[2]

December 1, 1999

Transcription by Adrienne Yoshihara

Opening Remarks of Committee Chairman Frank Murkowski (R, Alaska):

Ladies and Gentlemen, we are a nation in search of a western water policy. Since the enactment of the Reclamation Act of 1902 and for nearly seventy years thereafter, western water policy was a singularly one-dimensional regional development policy. This policy is promoted to the exclusion of all other considerations in order to "civilize" America's West. During the Reclamation era, we built our greatest dams and redirected some of our greatest rivers -- these achievements were technological marvels that enabled us to convert the arid west into agricultural and urban wonders. However, such progress had consequences: out-stream use and pollution combined to devastate aquatic ecosystems, destroy whole aquatic species, endanger the survival of numerous other water-dependent species, and threaten the quantity and quality of the West's waters for all uses.

By the 1970's, countervailing environmental policies and economic realities challenged the primacy of the Reclamation era water policy. Western water policy underwent federalization with the enactment of major national environmental laws, including: the Wild and Scenic Rivers Act (1968), Clean Water Act (1972), and the Endangered Species Act (1973). These laws, among many others, subjected western water to national water goals and standards which remain in force today.

Moreover, the economic reality of the 1960's -- including America's increasing involvement in Vietnam and President Johnson's "war on poverty" -- rendered the federal government's continued bankrolling of the West's water infrastructure infeasible. These challenges exposed the multi-dimensional nature of western water and effectively ended the dominance of the Reclamation era's one-dimensional (i.e., supply-oriented) water policy.

Arguably, since the 1970's, America has lacked a coherent policy with which to direct and shape legislation, regulation, allocation, and uses of western waters. Western water is now subject to often overlapping, confusing and conflicting authorities, regulations, and interests. No single ideology currently provides a cohesive vision around which all these diverse, and often competing, interests can rally.

This policy void threatens the continued growth and prosperity of America's West. The current tangle of authorities, laws, and regulations creates prohibitive costs and economic and legal uncertainties for western water interests. The West needs its water, and it needs certainty regarding this vital resource. Therefore, Congress must adopt a policy that will provide the plan, rationale and standards for western water laws and regulations that, in turn, will assure the West's water supplies well beyond the twenty-first century.

The Senate Committee on Energy and Natural Resources convened these hearings to examine the various competing western water policy visions. Today's hearing is dedicated to reviewing the policy recommended by the Western Water Policy Review Advisory Commission in its 1998 Report to the President.

At this time, I would like to welcome our honored guests, Professors Denise Fort and Garrett Hardin. Professor Fort has graciously agreed to testify on behalf of the Western Water Policy Advisory Commission, of which she was chairperson. We are especially pleased to have Professor Hardin with us today. I am certain his critique of the Commission's Report will prove as insightful as his famous article, "The Tragedy of the Commons." As always, I am pleased to greet my august fellow committee members, twelve of whom represent ten of the seventeen affected western states.[3]

If my revered colleagues agree, I would like to have both our guests testify before entertaining questions from the honored members of this Committee. As we all appear to be in agreement, let's get started.

CHAIRMAN MURKOWSKI: We are pleased to have Professor Denise Fort with us today. Professor Fort is a professor of law at the University of New Mexico Law School and served as Chairperson of the Western Water Policy Review Advisory Commission ("WWPRAC") from its charter by the Secretary of the Interior in 1995 through its final report to the President in 1998. Good morning and welcome, Professor Fort.

PROFESSOR FORT:[4] Thank you Chairman Murkowski and members of the Senate Committee on Energy and Natural Resources for inviting me to testify on behalf of the WWPRAC. In addition to presenting the Commission's findings and recommended principles regarding western water, I would also like to take this opportunity to outline the western water policy proposed by the Commission, substantiated by these findings and principles.

The WWPRAC identified four critical findings that define the state of present day western water.[5] First, the West's waters are over appropriated in many places. Second, substantial amounts of water are needed to address obligations to Indian nations and tribes, to restore endangered species, and to meet the needs of a rapidly growing population. Third, national, state, and local objectives for the use of water may differ. And fourth, existing uses of water have deep economic, social, and political roots.

Clearly, western water is no longer a simple matter of supply and consumption. Instead, we are faced with answering complex questions of equitable allocations, equitably shared burdens, and potential social disruptions based upon the inevitable reallocations of western water necessary to address the former two questions.[6] The conflict for western water amongst competing interests is the operating reality.

A ready example of this fundamental competition for water can be seen in the current debate regarding western dams. These federally-financed massive dam projects were built solely to satisfy out-stream interests: i.e., agriculture and urban demands. In the rush to fulfill out-stream demands, however, dams and their attendant water conveyance facilities altered, and thereby severely damaged, the western water environment.[7] Now, in-stream interests seeking to preserve native aquatic species and restore riparian ecosystems compete against both dams and outstream interests reliant upon the dams for western waters. These in-stream interests seek either to retain waters once freely released by dams for out-stream uses (i.e., they seek to exert a degree of control over dam operations) or to bring the dams down altogether.

Dams, once perceived as win-win solutions to the water supply problem,[8] now operate alternately as competitors for western waters, a principal cause of western water degradation and the means by which interests seek to manipulate allocations. Obviously, given that water is over-appropriated in many places, the in-stream retention of water necessarily entails the diminishment of water available for out-stream uses.

Facts like these contribute to the Commission's conclusion that the competition for western water will only intensify over time. The President, however, charged the WWPRAC with more than fact-finding; he directed the WWPRAC to draft a proposed policy for the management of western water.

To this end, the WWPRAC's policy proposal contained two sets of recommendations in our final Report. The first set identifies the ten guiding principles against which western water policies and programs are to be measured. The second set delineates the six crucial elements of a future-encompassing western water policy. For the sake of brevity, I propose to simply catalogue the principles and policy elements, and to highlight only the preeminent item in each set, at this time.

The ten proposed principles of western water policy are: (1) sustainable use of resources; (2) maintenance of national environmental goals and standards as established in the various environmental statutes; (3) emphasis on local implementation, innovation, and responsibility in achieving national standards; (4) use of incentives to achieve resource goals; (5) respect for existing rights; (6) promotion of social equity; (7) organization around the hydrologic system; (8) ensuring measurable objectives, sound science, adaptive management; (9) participatory decision-making; and (10) provision for innovative funding to manage and restore western rivers. Of these ten principles, however, the Commission views the sustainable use of resources as the overarching principle of western water management. Sustainable use of resources can be defined as development that meets the needs of the present without compromising the ability of future generations to meet their own needs. As applied to water resources, the core idea of sustainable use and development is that all resource management decisions must give adequate weight to accommodating both consumption and conservation as well as to the legitimate role of equity considerations.

The Commission's proposed western water policy comprises six essential elements. The first element would integrate the management of river basins and watersheds across agencies, political jurisdictions, functional programs, and time. The Commission views such integrated governance as the crucial element in our policy proposal. The remaining five elements include: meeting tribal obligations; ecological resources management and restoration; management of water and water resources; protecting productive agricultural communities; and improving decision making and reducing conflict (especially in coordinating federal water management and federal water policies as these are applied to western waters).

In conclusion, competition and conflict are bound to define western water policy well into the future. However, both these aspects of an over-appropriated resource are manageable. With our recommendations, the Commission seeks to promote tools for working through these conflicts, to reaffirm national obligations that have not been fully met, and to promote shared investment in the resource to obtain greater environmental health and, from that, reduced social conflict.

My sincere hope is that this Committee, and eventually Congress, will consider adopting the WWPRAC proposal as the basis of this nation's western water policy. Again, thank you for this opportunity to testify on behalf of the WWPRAC.

CHAIRMAN MURKOWSKI: Thank you Professor Fort. Gentlemen and Gentlewoman of the Committee, as I stated earlier, questions for our guest speakers will be entertained after all testimony has been given. Now, I have the privilege of welcoming Professor Garrett Hardin to our chambers today. Professor Hardin's seminal work, "The Tragedy of the Commons," is deemed by many to be "the most influential article ever written in the environmental field."[9] We have invited Professor Hardin to critique the WWPRAC's proposal from his perspective as a biologist and population control advocate for over forty years.[10] Professor Hardin.

PROFESSOR HARDIN: [11]

Good morning Chairman, Gentlemen and Gentlewoman of the Senate Committee on Energy and Natural Resources, Professor Fort, and members of today's public audience. I certainly appreciate the Chairman's invitation to comment upon the WWPRAC proposal for western water policy. Unlike Prof. Fort, however, I am here to urge extreme caution upon the members of this Committee, and upon Congress, in considering the adoption of the WWPRAC proposal.

I shall review the WWPRAC proposal as laid out by Professor Fort: findings first, principles next, and policy elements bringing up the rear.

Re: WWPRAC Findings

The Commission's findings are doubtless correct. However, I cannot agree that the four findings presented in the WWPRAC proposal provide either a complete or accurate definition of the West's water problem.

The carrying capacity of western water is the central concept in any discussion concerning that resource and carrying capacity data are conspicuously absent from the WWPRAC findings.[12] Essentially, what are the maximum amounts of agriculture (and its attendant population) and urban population that can be sustained by western water year after year, without diminution of the quality of this resource? Put another way, what is the optimum mix of agriculture and population in the seventeen western states that permits the maximization of western water? Without data specifying western water carrying capacity, the Commission's "definition" of the water problem is more than woefully incomplete: the definition is dangerously misleading where it suggests itself as a proper factual basis for policy principles, policy, and programs.

Carrying capacity data are also essential to identifying the crucial parameters of the West's water problem: i.e., at what "point" is western water's carrying capacity maximized by an optimal combination of agricultural and urban uses, and at what "point" is this carrying capacity exceeded to the detriment of the resource, the population, and the environment? Here, the issue of carrying capacity has serious implications for the future. Exceeding carrying capacity in one year diminishes the carrying capacity in subsequent years. The ultimate result of such transgression is the ruin of the environment. Again, the Commission's apparent failure to seek and translate such data into specific findings renders their definition of the water problem more than incomplete.

Although the Commission emphasized its concern for environmental integrity in numerous occasions throughout the Report and in its proposal, the Commission obviously failed to account for the ecologists' Eleventh Commandment: Thou shalt not transgress the carrying capacity. Implicit in such a commandment, of course, is that: "Thou shalt know the resource's carrying capacity." The WWPRAC clearly failed to determine western water's carrying capacity. This failure thus sets in motion the tragedy of the WWPRAC proposal: i.e., failure to know the carrying capacity of western water leads inevitably to the proposed principles and policies in which transgression of the carrying capacity is certain.

RE: WWPRAC Proposed Principles For Western Water Management

While the Commission's definition of the water problem flunks for want of carrying capacity data, at least its four findings had some bases in fact. I cannot say the same for the Commission's choice of an overarching principle: i.e., sustainable water development.[13]

The first, and overarching, principle of any resource policy (regional, national, and international) is the finiteness of the natural resource in question. The WWPRAC recognized the finiteness of western water, but only in passing and not as a determinative rule (or, principle) unto itself. This simply flies in the face of common sense. The finiteness of western water should be the default rule or principle underpinning any policy regarding that resource.

Instead, the Commission has succumbed to the illusory default rule which holds that human willpower can overcome not only all odds, but also the reality of resource finiteness. In the past, policymakers believed all problems had technical solutions. Certainly such a belief inhered in the Reclamation era water policy: settlers were enticed to populate an arid unpopulated West with water captured and delivered by technical means. In practical terms that policy meant dams, and dams were the technological solutions of that era. However, dams are now disfavored solutions given their unintended consequences of riparian ecosystem destruction and financial infeasibility. Still, the rule of human will holds sway. The Commission has determined that the West's population can and will continue to grow by leaps and bounds, and that water management is now a matter of "sustainable use" -- i.e., human persistence will solve the dilemma of a maximizing population faced with a finite resource.

As defined by the Commission, sustainable use means that water can be managed to support "environmental, social, economic, and cultural values indefinitely...[while concurrently] recogniz[ing] and address[ing] the dramatic current trends in population growth and movement."[14] Thus, according to the Commission, water -- a finite resource -- can somehow be made to indefinitely support not only every interest, but also significant population growth. While the West's population grew 75% in the sixty years between 1930 and 1990, the WWPRAC Report projects this growth trajectory to continue for at least the next 25-plus years. To wit, the WWPRAC expects the population of the western states to increase another 51% between 1990 and 2020, resulting in the influx of nearly 40 million new settlers. The principle of sustainable use assumes, and never questions, the morality of such population growth. And nowhere in the WWPRAC Report is the matter of population control considered. Water scarcity will inevitably result from a policy based upon the principle of sustainable use.

Western water is finite, but it is not necessarily scarce. Scarcity, as you all know, is simply the ratio of the size of the population to the magnitude of the available resource (i.e., water). Western water scarcity has been and will always be a non-technical solution problem. In essence, no amount of technology can increase the overall volume of water available from western water sources. When western water becomes scarce, more than the mere "adjustments in water uses" called for by the WWPRAC's sustainable use policy will be required. In nature, scarcity of a resource entails deprivation and diminishment of the overall population. In human society, water scarcity will involve rationing, possible deprivation, and unavoidable depopulation of water poor areas.

Naturally, the Commission holds a perspective that contradicts any notion of scarcity. Instead, the implicit assumption underlying the Commission's preeminent principle is that the greatest good can be achieved for the greatest number. However, this assumption is fallacious. Maximum use of a finite resource by the maximum population assures the eventual depletion of that resource. The greatest good is possible only where the population is some figure well below maximum. This relates back to the issue of western waters' carrying capacity. What is the optimum level of population whereby this number may be sustained year after year without diminution of the quality of the water? Recognition of an optimum level, of course, would entail recognition of the need to control population growth. No such recognition can be found anywhere in the Report. Rather, the Commission speaks of "sharing the burden and minimizing the social disruption" amongst a maximizing (i.e., uncontrolled growing) population. A maximized population, however, insures that the burdens and social disruptions caused by water scarcity will likewise be maximized.

Thus, sustainable use of western water holds severe negative implications for the future health of human society of the West's states. This principle, moreover, would operate to the detriment of the very riparian environments the WWPRAC proposal seeks to restore and protect.

Increased water pollution is an inescapable consequence of population growth. Therefore, where sustainable development of western water resources supports, or actually promotes, population growth, it promises elevated levels of water pollution. And the West's population -- urban, agricultural, and otherwise -- has treated the commons in the form of western water bodies as cesspools. For example: agricultural run-off and return flows contaminated with agriculture's chemical wastes (pesticides, etc.) freely enter western waters in massive quantities; moreover, transvaporization of irrigation waters results in the increased salinization of remaining waters. All of these activities are perfectly legal, notwithstanding the federal water standards and goals of the Clean Water Act.[15]

While little relief is in sight for western waters polluted by agriculture, even less can be expected on the urban population front. Uncontrolled urban population growth, due in large part to the promised availability of water, will assuredly contribute to western water pollution and the degradation of the riparian environment. Along with higher levels of pollution, sustainable use guarantees the intensification of competition between in-stream and out-stream water uses. Growth engendered by sustainable use, therefore, will conflict with the WWPRAC proposed principles of adherence to national environmental standards for water and of restoration and protection of riparian ecosystems.

Senators, sustainable development of western water resources is nothing more than a gigantic exercise in self-deception. Contrary to the WWPRAC's wishful thinking, western water cannot indefinitely support perpetual and uncontrolled growth -- economic, population, and otherwise -- in the region. This is just plain common sense.

Re: WWPRAC Policy Recommendations

Thus far, the WWPRAC proposal suffers from a substantively incomplete definition of the West's water problem and a delusional reliance upon the wholly inappropriate principle of sustainable use. Simple logic would lead us to conclude, therefore, that any policy recommendations premised upon such shaky foundations is suspect.

The WWPRAC proposes a policy which comprises the following six elements: integrating western water governance, meeting obligations to tribes, restoring riparian environments, managing the water infrastructure, protecting productive agricultural communities, and reducing western water management conflict through coordinating federal water management. If truisms could solve the West's water problem, then the WWPRAC is on the right track with its six recommendations. Aside from stating the obvious, however, these recommendations are almost beside the point.

While promoters of western state growth would argue otherwise, reality demonstrates that western water is well on its way to being a full-blown tragedy. The implementation of Reclamation water policy inexorably worked its harms upon western waters. This policy promoted uncontrolled regional population growth by exploiting water resources and by never considering the consequences of exceeding the resource's carrying capacity. The damages incurred by this policy are lengthily documented in the WWPRAC Report and in many other reliable sources, including Marc Riesner's brilliant book, The Cadillac Desert. Western water requires a policy that will reverse the harms worked upon it by damming (i.e., all the consequences resulting from such technology) while concurrently assuring the West's population its quality of life.

The policy that will assure western water quantity and quality into the future is the policy that sets an optimum population vis-a-vis western waters as its primary goal. Optimum population is no truism; the optimum population at which western water resources are maximized is not obvious. Make no mistake, Gentlemen and Gentlewomen, the difficulty of defining the optimum [population] is enormous. However, optimization of the West's population must be the policy goal for western water resources if water scarcity and its dire consequences are to be avoided.

The WWPRAC's proposed policy practically guarantees water scarcity. The WWPRAC's policy focuses on the per se management of western water, and thereby misses the forest for the trees. While they would have this nation busily saving trees -- i.e., by integrating resources governance and restoring river by river, etc. -- uncontrolled population growth will cause the "forest" (i.e., the rivers) to go dry.

The WWPRAC proposal means well. But, just as the road to hell is paved with good intentions,[16] the Commission's policy would have disastrous consequences for western waters, the West's population, and this nation.

Thank you for this opportunity to share my views, and grave concerns, regarding this flawed and dangerous proposal.

CHAIRMAN MURKOWSKI: Well, thank you Professor Hardin for that incisive critique of the WWPRAC policy proposal. The floor is now open for questions from Committee Members. The Chair recognizes the Senator Kyl of Arizona.

SENATOR KYL:[17] Professor Hardin, as you know, while I was a WWPRAC member I dissented from the Commission's final findings and recommendations. As with the WWPRAC Report, I object to your overly pessimistic outlook regarding western water. The state of western water is hardly tragic. Rather, western water presents an opportunity which can be met by innovative problem solving. What is your response to this perspective of western water?

PROFESSOR HARDIN: Good Senator, should your perspective dominate this country, I would then have to say that we are not a nation in search of a western water policy. We are a country in denial.

SENATOR NIGHTHORSE CAMPBELL: Professor Hardin, you were pretty tough on the Commission. You also only hinted at the western water policy you would support. Can you fill us in, here?

PROFESSOR HARDIN: Most certainly, and thank you for asking Senator.

Senators, the only real answer to the western water problem is a change in the values and morals respecting this resource. Of course, all of us would prefer that the problem be solved without having to relinquish any of the privileges we now enjoy. Moreover, we would prefer that the next fellow change HIS values and morals, if such change is necessitated. Obviously, this answer offers little to nothing in the way of policy formulation.

Therefore, we start with the fundamental premise that maximization of western water can only occur with an optimum population. Remember, a maximized population will cause the destruction of the resource (i.e., the tragedy of the commons, if you will). Thus, population optimization is the policy goal. Toward this end, a population optimization policy comprises two primary elements: first, we must determine the optimum population respecting western water; and second, we must establish the mutually coercive and mutually agreed upon means by which the optimum population level will be achieved and maintained.

Determining the optimum population respecting western water requires two different appraisals. The first appraisal requires determining the maximum good to be gained from the resource per person. The second appraisal requires that the resource's carrying capacity be assessed. The maximum good per person (in terms of western water) is an exercise in weighting values (goods) and compromising upon those values the majority can agree carry the greatest weight. Western water's carrying capacity is determined by calculating the size of the population that the resource can sustain annually without detriment to the resource quality. Of course, the values placed upon western water by the population will directly affect the carrying capacity calculation.

Some would argue that once the majority agrees upon a set of values regarding western waters, Adam Smith's "invisible hand" steps in to insure that the individual will make decisions for the benefit of the community. Or, they would argue that social approbation and personal guilt will ensure transgressors (those exhibiting unacceptable values per the resource) will comply and eventually conform. However, achieving the optimum population requires more than reliance on or an appeal to the individual's conscience.

A population optimization policy requires laws with which to equitably coerce both individuals and groups into compliance with those values most heavily weighted by a majority of citizens. Since 1968, I have publicly advocated legalized coercion as the necessary means by which to secure compliance. Unfortunately, coercion remains as politically incorrect in 1999 as it was in 1968. However, reality proves coercion is a function of American democratic life. A democracy is governed by restrictive laws that can be legitimately described as exerting mutual coercion, mutually agreed upon. Unanimity is not required.

SENATOR DOMENICI: So, Professor Hardin, what you're saying is that to determine the optimum population requires determining the carrying capacity of western water, which requires determining an optimum population. Is this right?

PROFESSOR HARDIN: Senator, I didn't say this was going to be easy.

SENATOR KYL: Professor Hardin, what you are really espousing is more laws and regulations regarding western water management on top of the jumble of laws, authorities and regulations already confusing the matter. In this sense, isn't the result you advocate the same as the WWPRAC -- over-regulation and governmental interference with the West's freedom to grow and prosper?

PROFESSOR HARDIN: Senator, the issue is not one of burdensome laws, but one of which values respecting western water will prevail, and therefore which freedoms and rights vis-a-vis western water resources will be acceptable and tolerated. The current western water property rights regime significantly contributes to the tragedy of western waters by permitting water rights holders to use and pollute these waters with near impunity.

Clearly, merely asking holders of these rights to stop because it is the right thing to do will not work -- appeals to their conscience are insufficient where the utility of continuing to abuse the resources outweighs the utility of non-abuse. Again, take farmers for example. Essentially, these agriculturists have no reason to stop their abuse. They profit handsomely from using chemicals on their crops and realize no penalties for contaminating the waters with chemical-laden return flows and run-off.

From the farmers' perspective, and apparently supported by the law, holding water rights grants the rights-holder the freedom to use and pollute western waters with minimal restrictions, if any. Therefore, where society values water quality and riparian ecosystems more highly than bug-free crops, the freedoms represented by these water rights become intolerable. In such a situation, a redefinition of property rights is necessary.

SENATOR LANDRIEU: Professor Hardin, your call for a change in the current scheme of western water property rights is worrisome. After all, appropriated water rights are constitutionally protected property rights. How would you address this constitutional issue?

PROFESSOR HARDIN: Madame Senator, I am a biologist. Not a lawyer.

CHAIRMAN MURKOWSKI: Gentlemen and Lady Senators of the Committee on Energy and Natural Resources, we are about to enter into the lunch hour, which requires we conclude this morning's portion of today's hearings. I would like to thank Professors Fort and Hardin for joining us today, and for giving us much to consider as our Committee, and the entire Congress, grapples with the matter of western water policy.