Water Law: Droughts, Climate Change, & Policy

Episode Notes

Transcript

[Music]

Intro: Climate change is forcing us to have really difficult conversations and make difficult decisions and decide our priorities about water use right now. Welcome to the award-winning podcast Lawyer to Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named ‘May It Please the Court’ and I have two books out titled ‘How to Get Sued in the Sled.’ Well, it may not be well known but people will understand that water is our most precious resource and water statewide and worldwide is becoming scarce, if not, very scarce.

According to the World Health Organization, an estimated 55 million people globally are affected by droughts every year and water shortages are the most serious hazard to livestock and crops in nearly every part of the world. By 2025, two-thirds of the world’s population may face water shortages and by 2030, as many as 700 million people are expected to be at risk of being displaced. But certainly, it’s here now. And for the last nine years, there’s been an ongoing legal battle between Texas and New Mexico over the groundwater pumping along the Rio Grande. It’s a region where water supplies like many others are dwindling due to increased demand along the drought and warmer temperatures brought on by climate change. Settlement has not been reached in the Rio Grande matter so trial is set to start next January.

Today on Lawyer 2 Lawyer, we’re going to spotlight water law, we’re going to discuss droughts, erratic climate events and what’s being done to eradicate these water centric issues through laws and policy. And to help us better understand this issue, we’re joined today by Rhett Larson. He is the Richard Morrison Professor of Water Law at Arizona State University’s Sandra Day O’Connor College of Law. He is a faculty fellow in the Center for Law and Global Affairs and the Center for Law, Science and Innovation.

He’s also a senior research fellow with the Kyle Center for water policy at ASU’s Morrison Institute for Public Policy. Professor Larson’s research and teaching interests are in property law, administrative law and environmental and natural resource law and in particular, domestic and international water law and policy. Rhett is also the author of Just Add Water: Solving the World’s Problems Using its Most Precious Resource. You can find it at Oxford University Press. It was published two years ago in 2020. Welcome to the show, Rhett.

Rhett Larson: Thank you very much.

J. Craig Williams: Well Rhett, most of us aren’t very familiar with water law. It’s a pretty specialized area of the law. In the context of the drought that the west is facing right now, what does water law have to do with it?

Rhett Larson: Water law has just about everything to do with it. So if you imagine a situation where you have millions of people who all want access to the same scarce resource and there’s not enough to satisfy all of those demands then law decides how we prioritize who has ownership in those water rights. And this ranges from very small scale issues to small ranches that share a well all the way up to large international issues between the United States and Mexico and how they share the Colorado River.

So the law sort of dictates those issues all the way down. I tell people that water law is a lot like bankruptcy law where there is a whole lot of legal rights to a scarce resource that can’t satisfy all of those legal rights. So water law is a law about how to allocate those scarce resources between competing legal interests.

J. Craig Williams: Well it does sound like we’re going bankrupt with water as much as we read in the news. What about the drought and how does water law affect how it’s going to be allocated?

Rhett Larson: Well at the sort of at the state level in the western United States, water law is sort of dictated by prior appropriation. So, a first in time, first in right regime, not that dissimilar from calling shotgun if you’re looking to who’s going to sit in the front seat of a car. So, whoever gets to the water first puts it to beneficial use as a superior right to that quantity of water for that use over any subsequent user.

So if somebody shows up in 1890 and they divert water to irrigate corn and they divert 10 acre feet — and I’ll use acre feet a lot. Acre feet is about 326,000 gallons or it’s 1 acre flooded to 1 foot. If they divert 10 acre feet in 1890 to irrigate corn then someone shows up in 1900 and they divert 10 acre feet to mine for copper and one year, there’s only 8 acre feet left in the river, well, the person who has the 1890 right gets 8 acre feet and the person with the 1900 water right gets nothing. If there’s 12 acre feet, the person with the 1890 right gets 10 acre feet and the person with the 1900 right gets 2 acre feet. So that’s the way the law dictates how we share shortage between water users.

(00:05:20)

Groundwater law is a little bit different. It’s regulated in a different way but it still allocates resources for when we’re competing over groundwater law. And then at the interstate level, it’s very complicated. So there are trans boundary interstate compacts that are part of the process for deciding states that share the same river. Like many states share the Colorado River, how they divide that up is dictated by interstate compacts and by a whole series of Supreme Court decisions.

J. Craig Williams: Wow, it sure does sound complicated. And there are a couple of compacts right? There is a Rio Grande Compact and what is it that controls the Colorado River?

Rhett Larson: Well, compacts are an increasingly common way for states to manage their relationships between over-shared rivers. So, historically, states would sue each other and the Supreme Court has original jurisdiction over lawsuits between states. And so, it goes straight to the United States Supreme Court where they would engage in what was called equitable apportionment. People got nervous about having nine judges determine their water supply so they would negotiate interstate compacts and those compacts would be approved by Congress. Ultimately, state still sue each other over the compacts and that still goes to the Supreme Court but compacts govern interstate water rights all over the country.

There are compacts in the Delaware River Basin and there are compacts in the Great Lakes. There are compacts in the Republican River, the Arkansas River, the Red River. There is a compact that governs the relationship over the Colorado River. It was enacted or it was agreed to in 1922 but it is only one part of a very complex series of laws that govern state’s relationships over the Colorado River.

J. Craig Williams: What do we do in times of drought? I mean, we just each cut allocations and hope for the best?

Rhett Larson: Well, the law is pretty particular about what we do in drought. So at the state level and prior appropriation, we give water to the senior water right holders and we take water away from the junior water right holders. Now, the law dictates that as the default rule. What happens in the real world as we negotiate with each other and junior water rights holders will acquire temporary leases to senior water right holders’ rights or they will acquire additional ground water rights to help them ride out a drought, in interstate water law, it’s much more complicated.

So that’s sort of the big news right now is the shortage in the Colorado River Basin between states. The way that we’re managing drought in that instance is that in 2007, the Department of Interior issued what are called shortage sharing guidelines that dictate at different levels of the reservoir in Lake Mead how states take cuts to the Colorado River than in 2019. The states agreed to something called the drought contingency plan that added extra layers of cuts that we accept as the reservoir level drops. Each level that it drops requires different cuts for different states.

J. Craig Williams: Who is it that manages all this? I mean does the public have any right in this or is this something that’s governed by election officials?

Rhett Larson: Well, it varies between states. So in each individual state, you will have a different water management regime. Sometimes the water management agency is the state engineer’s office. Sometimes it’s very sort of distributed and sort of at the grassroots level where there will be Regional Irrigation Districts or Regional Groundwater Management Districts.

In Arizona for example, we have the Arizona Department of Water Resources which is the agency that oversees all of Arizona’s water resources and manages its internal water rights and is also the voice of Arizona when negotiating with other states. So every state has a slightly different management situation but it sort of depends. Are they elected officials? Are they appointed by the governor? It varies between states.

J. Craig Williams: And what role does money play in all of this? Is there a social justice issue that we need to be concerned about here? Is everybody treated fairly or like — here in Southern California, we have the famous MWD (Metropolitan Water District) that seems to be the big 800-pound gorilla.

Rhett Larson: Well, money has lots to do with it. One thing we say in water policy a lot is that water doesn’t flow downhill, it flows to money. Most water problems can be solved if you’re willing to spend enough money. If you’re willing to spend enough money on desalination then you can make all the water that you want but you’re just going to have to charge a lot of money for that water. So, money plays a big part of it and there are definitely equity issues, social equity issues when it comes to water quality and to water distribution but those social equity issues can vary. So, for example, take California. The Metropolitan Water District manages Colorado River water flowing into San Diego and to Los Angeles. But the Imperial Irrigation District which is an irrigation district in Southern California in the Imperial Valley actually has the bulk of the water rights to the Colorado River in California.

(00:10:08)

So, California has a right to 4.4 million acre-feet of water from the Colorado River and of those 4.4 million acre-feet, the Imperial Irrigation District has rights to 3.1 million acre-feet.

So the Met looks like the 800-pound gorilla when you’re talking about municipal water supplies but when you talk about the broader river basin, the really powerful governmental entity in California is the Imperial Irrigation District.

J. Craig Williams: Is it too powerful?

Rhett Larson: Is it too powerful? I guess that depends on what you mean by power. Imperial Irrigation District is a critical part of the United States of America’s food security. Imperial grows a lot of the vegetables that we eat every day just about every American eats Colorado River water every day that comes from that region at the sort of southern end of the Colorado River. So that food security issue is really, really important but Imperial Irrigation District has, because it has a very senior priority right so it has a very early priority right to that water. And because it has a right to so much water, it is an enormously powerful irrigation district.

And in order to sort of bring it to the table when we’re trying to negotiate about shortage can be difficult because there are much less powerful entities in the river who have much junior priority rights to water and rights to a less secure supply that’s easier to cut and to find leverage on an entity like the Imperial Irrigation District can be really difficult.

J. Craig Williams: If we keep seeing climate change in the path that it’s taking, are we going to have a water problem down the road? A freshwater problem?

Rhett Larson: That problem is here now. We have a serious freshwater problem in the western United States and it is driven in part by climate change. So climate change, what you’re seeing with climate change is, you’re seeing more frequent and more intense El Nino years. El Nino is an anomalous warming of the Pacific Ocean that changes climate patterns. It usually means wetter winters for the southwestern United States and you would think, “Oh, well, that’s good. It means we’ll get more snow pack.” But the problem with climate change has been that even though our winters are relatively wet, they’re very short and they’re very hot. And because they’re so short and they’re so hot, most of that water, even though we’re getting the snowpack, is not reaching the river. So we’re getting about 90% of our normal snowpack in the last couple of decades but we’re only getting about 30% of the runoff. Meaning only about 30% is hitting the river.

And so, climate change is definitely taking a problem we were likely to have any way. We were going to have water disputes in the western United States in an arid region with a growing population no matter what. But climate change is definitely making the problem worse and making it move much faster and that problem is upon us right now, these serious negotiations we are having right now about shortage in the Colorado River basin. But for climate change, we might not be having these conversations until much later down the road. Climate change is forcing us to have really difficult conversations and make difficult decisions and decide our priorities about water use right now.

J. Craig Williams: All right. We need to take a quick break to hear a word from our sponsors. We’ll be right back.

InfoTrac is the very first integrated e-filing and serving platform. By connecting your firm’s case management or document management software, InfoTrac automate some of the most tedious tasks in the litigation process. E-file court documents, serve legal papers, collect electronic signatures and more straight from your matter. Return documents and expenses sink back automatically saving you time and helping you keep your case files organized. You can learn more at infotrac.com/lawyer2lawyer.

Female: As a lawyer, ever wish you could be in two places at once? You could take a call when you’re in court, capture a lead during a meeting. That’s where Posh comes in. We’re live virtual receptionists who answer and transfer your calls so you never miss an opportunity and the Posh app lets you control when your receptionist steps in. So if you can’t answer, Posh can. And if you’ve got it, Posh is just a tap away. With Posh, you can save as much as 40% off your current service provider’s rates. Start your free trial today at posh.com.

J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m joined by Rhett Larson. He’s a Professor of Water Law at Arizona State University’s Sandra Day O’Connor College of Law and we’re talking about running out of water. We joke about it but how close are we?

Rhett Larson: Well, I would say that there’s — I am an optimist so there are definitely more pessimistic people in this sphere than I am. Our history has told us that we will find solutions to this. There is a reason that we first found ways to live with each other outside of families and tribes along the banks of desert rivers.

(00:15:02)

So, our civilizations, our laws were born on the banks of the Nile and the Tigris and the Euphrates and Indus. We learned to live with each other along desert rivers. I still believe that that past will dictate a bright future for us but right now, we should be really, really worried.

If you live in the southwestern United States, water should be the most important thing on your mind right now. And while it’s unlikely in the near, near future to affect your tap, what it will do is that you’re watching a lot of your farmers, a lot of farmers who are your neighbors are dealing with some really difficult circumstances right now and they’re facing crisis situations, they’re looking at possible cuts. There’s a lot of uncertainty in the future and you might think, “Well that doesn’t have a lot to do with me” but it has everything to do with you because you’re going to pay for that uncertainty and that risk in the grocery store.

So when your milk prices and your vegetable prices and your beef prices, when they all go up, they’re going to be driven by this drought and that drought is where the average person, the non-farmer, is going to feel it as they’re going to feel it in the grocery store. And you’re going to feel it in other ways as well because if we’re expecting farmers to address this issue, if we’re expecting farmers who use depending on where you’re at, the basin between 70 and 80% of the water supply goes to irrigated agriculture.

We need farmers to be out in front when it comes to leading on conservation and efficiency but if we’re expecting farmers to lead in that way, then cities, towns, municipalities, industry, we have to show a good-faith effort on conservation if those farmers aren’t going to conserve all of that water just so that we can waste it. So if we’re going to show that good faith effort, it is going to mean things like a lot less non-productive turf, a lot more desertscaping of your yards, a lot more efficiency when it comes to your water use and your appliances and being much more conscientious about fixing leaky pipes, those sorts of things.

J. Craig Williams: Well, that is a lot to do but one of the things that I’ve read about is the loss of stormwater. We don’t have systems in place to catch the amount of stormwater that we get and a lot of it just washes out into the open. What progress is being made in that realm and what’s the problem?

Rhett Larson: Well stormwater is a complicated issue because you need the appropriate infrastructure to be able to manage it and invest in it. Some communities will have combined sewer systems where their storm sewers flow in to their sanitation sewers. Others will have separate storm sewers with municipal separate storm sewer systems. But the way that we can — and this becomes a problem because climate change, the most important thing, the biggest threat that climate change poses to us is water variability. It changes the drought flood cycles o that we have much more extreme droughts and we have much more extreme floods which means mitigating and storing those flood waters for drought periods becomes a more important part of our policy.

Now what can we do? Investing in improved infrastructure for stormwater management is a big part of it and part of that might be investing in mechanisms that, allow us to manage our stormwater for purposes of groundwater recharge. So as we dig more and more wells, as we take more and more of our groundwater, we need to recharge those. And so, if we find ways to divert our stormwater into groundwater recharge facilities or groundwater storage facilities, those might be the best way for us to sort of improve our stormwater management while at the same time mitigating the overdraft of our groundwater.

J. Craig Williams: How does the average person or in our case is most of our listeners are, lawyers, attorneys and judges, how do we get involved in this process and help the conversation move as well as the infrastructure in this and taking the steps we need to protect groundwater to start capturing stormwater to do all the things that are necessary to conserve?

Rhett Larson: Well, lawyers I think play a really important role because the law interacts in a whole variety of ways with our water managements. Now, the most obvious way is in actual water law so who owns the water, who controls it, the buying and the selling of water. There’s another obvious way in which lawyers can get involved and that’s on environmental law. So the Clean Water Act, the Safe Drinking Water Act, being able to manage those regulatory systems and ensure that people are in compliance because contaminated water affects all of our water security.

There are other ways though that lots of lawyers can be involved in this in the way that they’re practicing law. Part of that is with land use lawyers, wildcat subdivisions, unapproved subdivisions. These are oftentimes don’t have access to appropriate water supplies so lawyers who are responsible when we’re talking about land use development and making sure that there are secured water supplies and that we have transparent transactions in real estate so that people know about their water supplies. Real estate development in ways that are responsible and/or smart or integrating smart growth concepts I think are an important part of how we manage our water resources.

(00:20:00)

Public utility law is a really important way in which we manage our public resources, how we’re setting rates for water services allows for reinvestment into our water infrastructure, creates more incentives for water conservation. And then, it’s just the sense that lawyers can be good citizens, which is you would be shocked especially I think in the western United States, we think, “Oh, well, the people that I’m voting for,” as we have an election coming up, “the people that I’m voting for, these aren’t water officials,” but your governor is an important water official. Your attorney general is an important water official, your city and town council, your mayor, they are important water officials, the members of your corporation commission are important water officials. All of these people make decisions that are essential to responsible water management. And so, the more that good citizens who understand the law and are devoted to protecting our resources are either running for those offices or voting for the right people in those offices, that’s a great way to further water security.

J. Craig Williams: That’s an excellent point. What role does desalinization have in this – I mean these plants, from what I understand, take 20 years to build?

Rhett Larson: Well, again, I’m an optimist and that includes being a desalination optimist. I do think desalination will ultimately form an important part of our water portfolio. No one reform is going to get us out of the problem that we’re in right now. So, we’re not going to be able to conserve our way out of this problem, we’re not going to be able to augment our way out of this problem. It will take a variety of different approaches combined in order to resolve our water challenges, but desalination is part of it and people say, “Well, desalination is too expensive.” Well, in the 1980s, we could produce a single cubic meter of fresh water from seawater with about 35 kilowatts, but the best systems in the world right now, the kinds of systems that you see in the Llobregat in Spain, and Jiangmen in China, and Ashkelon in Israel, the Carlsbad plant in California. These plants are producing a single cubic meter of fresh water from seawater at about 2.5 kilowatts. So, the technology has come a long way and is going to be more viable.

Historically, the only nations that use desalination at large scale were really energy-rich, really water-poor countries like the gulf states, Saudi Arabia, but that’s changed and you’re seeing more and more countries invest in desalination. I think that’s probably a good thing, but desalination still has its costs and its risks. There are definitely environmental costs, not just with the energy that you’re consuming and how it might aggravate climate change, but in the way that you’re disposing of your brine waste, and then there are the costs associated with it. No matter how cheap you make desalination, that’s not going to be as cheap as a well you can drill in your backyard. So, even if you have, you know let’s take the Carlsbad plant as an example. You know, Carlsbad plant can sell a single acre foot of water at something like 2,000 dollars an acre foot. Well, right now the Gila River Indian Community is agreeing to leave water behind Hoover Dam and getting paid about 400 dollars an acre foot. So, you’re seeing the difference in price right there. No farmer can economically farm on 2,000 dollars an acre foot. So, desalination will play an important part of our future but by itself isn’t going to solve our problem.

J. Craig Williams: Are these desalinization plants private or government, or are they now utility? What’s the role that they’re going to play in society?

Rhett Larson: Well, it depends on how you develop them, but most of them get developed in some form of a public-private partnership. So, there’s some concession contract between a municipal water provider or a group of municipal water providers who will enter into a contract that’s a build-design-operate or a build-operate-transfer public-private partnership deal with a company, like Poseidon, the one that designed and operates the plant in Carlsbad. So, most of these desalination plants get developed in that way but it also depends on what country you’re in.

Here in the United States we do tend to rely more on the public-private partnership model, but Israel, which Israel has been a leader in desalination for decades, theirs has been relying on private industry for a lot of the design and implementation issues but ultimately the water supply is owned and distributed by the government.

J. Craig Williams: All right. At this time, we’re going to take a second quick break here to hear a word from our sponsors. We’ll be right back.

As a lawyer, insurance is one of the last parts of your job you want to spend on billable hours on. That’s why thousands of lawyers have switched to Embroker. Embroker offers A-plus rated insurance for law firms. You can quote and buy instantly online, and if you need help, they have experts on standby. Go from sign-up to purchase in 15 minutes by visiting embroker.com/law. That’s embroker.com/law.

While it might not have been covered at Law School, the smart lawyer knows that domain names are valuable assets to a client’s business when launching a new product or protecting their brand. GoDaddy’s domain broker service can help you and your client acquire that perfect domain even if somebody else already owns it.

(00:25:01)

Be the business advisors your clients need with GoDaddy’s expert brokers. Visit godaddy.com/dbs to learn more.

And welcome back to Lawyer 2 Lawyer. I’m joined by Professor Rhett Larson and he’s Professor of Water Law at ASU Sandra Day O’Connor College of Law. You and I both live in desert areas, Los Angeles where around the area where I live had been transformed into an oasis, certainly wastes a lot of water. What can a private individual do – I need to rattle off some things but what are the more important things to do to conserve water individually?

Rhett Larson: Well, at the individual level I think it’s important to just be a water-literate and water conscious person. A lot of the challenges associated with a Western water ethos is that we tend to live away from our water supply and it tends to be something that’s hidden inside of pipes. And so, just being a water-literate and water conscious person goes a long way.

Now, what can you do? One is to just embrace a desert lifestyle, which is living in the desert is beautiful, deserts are beautiful things. There’s no shame in living in a desert city. Our first cities were desert cities. And so, embracing a desert lifestyle means landscaping your yard like it’s a desert and maintaining it like it’s a desert. Most of your household level water, if you don’t have a desertscape yard, is going outdoors and that doesn’t need to be that way. Plant more plants that are adapted to the climate that you’re living in. The other is to be really conscious about leaks. We lose an enormous amount of water in this country just to leaky pipes. So, be aware of leaks and fix leaks when you see them, and when you find them it’s good for your water bill and it’s good for the environment, it’s good for our water security. Making sure that you have, you know, low-flow toilets, low-flow showers, the technology in our appliances has come a long way. So, most of the appliances we’re using now, we’re using much less water than the kinds of appliances that we were using, you know, even just a decade ago.

And then, the other thing, which I think goes along with what I said earlier, you know, with respect to both lawyers and with respect to being water conscious is making sure that in times like this when we’re voting, that you push candidates for elected office that they need to prioritize water. They need to be talking about water. We need to be asking them questions, serious, well-informed questions and we, in the desert, you should not tolerate having a water illiterate person running for public office. That plays an important role in water. If you’re going to run for that office, you better be an informed person when it comes to water issues.

J. Craig Williams: Yeah, that’s – I’m glad you mentioned that. That was my next question. What about pending legislation for water-centric issues? Let’s talk about what the federal government’s doing, Biden, the EPA. There’s apparently a historic water infrastructure bill. What kind of progress are we seeing, and there’s a load of questions here, but how do we deal with these candidates? How do we get them educated in water?

Rhett Larson: Well, the sort of legislation that I think are sort of at the front of a lot of people’s minds, both the Inflation Reduction Act in the Bipartisan Infrastructure Act included money to address water issues. A lot of that money was directed at either facilitating the settlement of tribal water right claims, so for Native Americans who have claims to potentially a large amount of waters to facilitate the settlement of those claims in court. A lot of that money is also going towards offering to pay farmers for temporary rotational fallowing agreements where they’re agreeing to leave some of their fields fallow and not take as much water in exchange for federal money.

The resolution of tribal water right claims I think is a really important thing that we can invest our money in. I think that will go a long way. A lot of these tribes need more certainty, they need more investments in water infrastructure development. I think that these settlement agreements can help facilitate that while also conserving water. The rotational fallowing agreements, the kind of money that’s coming from Congress to pay farmers to leave fields fallow, I have mixed feelings about that because on the one hand we’re facing such huge challenges right now when negotiating how we share in shortage, that buying us time is really valuable and these temporary agreements to leave more water in the river, more water in the reservoir, do buy us time. They help us come up with a better long-term, more durable agreement but by themselves, they’re insufficient because they’re just temporary agreements. We can’t pay farmers 400 dollars an acre foot to leave water in the river on temporary agreements in perpetuity. That neither gives us the ability to plan long-term nor is it something that we can really afford to do. So, I think we need to move towards a more durable long-term solution.

The other legislation that a lot of people are talking about right now is a bill before the US Senate about allowing the Colorado River Indian Tribes to market their water into Arizona to sell some of their water into central Arizona.

(00:30:00)

That’s a really complicated bill because California would obviously love to buy some of their water as well. There are other tribes within Arizona that are marketing their water rights to thirsty cities and they’re looking at Colorado River Indian Tribes coming in as a new competitor in that market. So, that bill is a really complicated controversial bill about how the tribes get involved in this market.

Now, on your question about what can we do to ensure having better sort of water-literate candidates, you know, I wish I knew. There’s kind of a double-edged sword to our economic development in the West which is, you know, for a long time our economies were driven so much by agriculture and mining that a lot of our business and civic leaders came from those sectors. They became our political leaders and because they came from those sectors, they lived really close to the water. They came from mining, ranching, farming. Now, our economies have diversified so much that, you know, healthcare and technology, that a lot more of our business, and civic, and political leaders are coming from sectors that aren’t as connected with the water. And so, I think more investments in encouraging a water-literate electorate is something that allows our voters to then push those who are running for office to be more water-literate. So, maybe the answer is to not worry quite so much about our elected officials but make the investment in our education system to make sure that we have citizens that are able to ask those officials good questions.

J. Craig Williams: I have a couple more questions. I know that we’re coming close to the end of the show but let’s go back in time a little bit when United States tried building a canal across the country, and the imbalance that we see in the floods and hurricanes, and heavy weather in the East and the droughts in the West. I mean, you know, the pipe dream is literally a pipe between the two and let’s shuttle the water. How realistic is that kind of thing?

Rhett Larson: Well, as much of an optimist as I am about our future, our water future, I confess I’m a pessimist about that plan, and here’s why. First of all, as you’re seeing right now in the Mississippi River Basin, there’s a drought in the Mississippi that’s making it difficult for barges to even move through the river. So, the assumption that people in the East always have more than enough water just isn’t true. They have their own drought issues. Supreme Court decides water disputes between eastern states all the time, just in recent years of large water disputes between Tennessee and Mississippi, large water disputes between Georgia and Florida. So, we think, “Oh, they always have more than enough water,” but that’s not necessarily true. Even the Great Lakes only have 1% recharge every year. So, if you pulled more than 1% of the water in the Great Lakes out every year, eventually you’d drain the Great Lakes.

So, one is I don’t think the east is quite as overflowing and abundant in water as we sometimes think they are. Number two is, can we really build a large infrastructure project that depends on something as unpredictable and overwhelming as hurricanes and floods? We don’t know when they’re going to come, and when they do come then we’re going to have this infrastructure that might otherwise sit idle all of a sudden become active, and then try to move all of this water which will be contaminated, need to be treated into a system that, you know, needs to rely, you know, 24 hours a day, 365 days a year on a reliable water supply. Relying on water that comes from floods and storms isn’t a terribly reliable way to do that.

The other issue is a legal issue. Are the people who own water rights in the eastern United States – I mean, they’re not going to give us their water for free, we’re going to have to buy it, to buy their water rights. We’re going to have to buy their land rights, or we’re going to have to enter into water leasing agreements with them to take water off of that land and move it outside of the basin is likely and water law per se unreasonable, so we’re going to face all kinds of legal issues. On top of the legal issues is the political issues. Water is a symbol of sovereignty. People are going to be reluctant to sacrifice water rights to other states and other citizens somewhere else when they see that water as a symbol of their own sovereignty, of their own community, and then out on top of that, the economic limitations which are water is just really heavy and to move it a long way costs a lot of money because it requires a lot of energy, and to require all the land rights, all the easements for that pipeline, it would be so expensive to build the pipeline and then so expensive to move the water that far that by the time it got to the end of the pipe, you’d have to charge people a lot of money just to meet the costs of the infrastructure. So, I’m pretty skeptical of a large pipeline like that.

J. Craig Williams: Right. That’s one of the silliest questions I think I’ve ever asked. So, what about contamination? I mean, here in the Los Angeles area and especially in Orange County, there’s some groundwater basins that are known to have heavy chemical use because we have a large manufacturing arena that has been unregulated until rather recently in terms of time, and there’s been a lot of contamination.

(00:35:02)

That groundwater is contaminated. How do we deal with that in terms of being able to pull it out and use it as water to either irrigate or to drink?

Rhett Larson: Well, the difficulty with water contamination is that we have the technology for the most part to address most contamination. The treatment plants are able to handle most of the sorts of normal contamination that you see in groundwater or in surface water. The problem is that once you’ve treated it to a usable level have you spent so much money that now the only thing you can sell that water for is some premium water use. You can’t just give it to a farmer to put on lettuce. Now you need to sell it to people who are, you know, they’re making beer or they’re drinking water bottlers or they’re making soft drinks. So, that’s one of the challenges with treatment is, can we afford to treat it? The other is a simple liability issue, which is can you find the person who’s responsible for that contamination and make them pay for the remediation?

Now, there’s a whole series of regulatory and statutory structures that can facilitate that kind of cleanup regime, whether it’s CERCLA or State Superfund issues that allow for that kind of remediation, or even citizen suit issues under things like the Clean Water Act or the Safe Drinking Water Act, but the real challenges I see coming when it comes to contamination are twofold. One are certain unregulated contaminants that are really difficult for our technology to treat, and that’s particularly true of endocrine disruptors, pharmaceuticals. A lot of those get into our systems and because those chemicals are designed to get past the blood-brain barrier, they’re very tiny chemicals and they’re very difficult for us to filter out, and so those are those I think are at the kind of cutting edge of what we’re worried about, and the other is PFAS pee.

PFAS is a really persistent chemical that you find all over the place that’s especially common in and around airports or military installations, but it’s also an all kinds of things from non-stick pans to, you know, flame-retardant clothing, all sorts of things, stain-resistant fabrics. This PFAS is a really persistent chemical in nature that’s difficult to treat and you’re seeing more and more efforts to regulate PFAS in water because there are rising concerns about its carcinogenic effects.

J. Craig Williams: Wow, scary all the way around. Well, Rhett, it looks like we’ve just about reached the end of our program so I’d like to invite you to share your final thoughts about this discussion. There’s many millions more questions I have. And give us the opportunity to provide your contact information so our listeners can reach out to you to continue the discussion, and tell us a little more about your book.

Rhett Larson: Sure. So, anybody, if you’re listening to this and thinking this guy sure sounds like he is very passionate about water, I am, and I’m so passionate. I am happy to talk to anybody about it. So, you can find me on the website for Arizona State University Sandra Day O’Connor College of Law where you can find my email address, my bio, and my phone number. I’m happy to talk more about these issues and to be helpful in any way. My book from Oxford University press is ‘Just Add Water: Solving the World’s Problems Using its Most Precious Resource’ and that book is basically saying why just about every problem on Earth is a water problem. Everything, not just from climate change but things like racial discrimination, gender and inequality, immigration, armed conflict, pandemics, all of these have water components, and that book is about examining how water plays a role in virtually every societal problem.

And I guess as just a closing comment, one of the things I love about being a water lawyer is that water is everything that gold or wheat or oil is. It is a valuable, saleable commodity, but water is also everything that faith, and music and art, and nature, and family, and sovereignty is. Water is just special. We feel about it differently. We don’t squirt each other with gasoline in the summertime, we don’t throw lumps of coal at each other in the wintertime, and we don’t baptize people in uranium. It’s just a unique resource and that unique way that we feel about it is what makes it so legally complex but such an enriching thing to study.

J. Craig Williams: Well, and I’ll add to that, that it makes up a huge part of our own bodies and without it, we’re not going to live.

Rhett Larson: Absolutely.

J. Craig Williams: Well, Rhett, it’s been a pleasure having you on this show. Thank you for your comments and looking forward to seeing what comes up in the next election.

Rhett Larson: It’s been my pleasure. Thank you.

J. Craig Williams: Well, here’s a few of my thoughts about today’s topic. Living in Southern California, looking out my office window, I see a lot of green, and it’s green because we’ve put the water there to make it that way. Certainly some of the mountains are green, right now we’ve got snow for the first time in Southern California in our mountains this year, it’s good to see. But like Professor Larson said, we’re in the crisis now. Not enough people understand water law. Certainly, today’s discussion has been eye-opening, at least for me, on many points.

(00:40:03)

But there’s a lot of things that all have to be done at the same time and we’ve got to solve this problem sooner rather than later. So, pitch in and help out at home, talk about water waste when you see it, identify and report it, and let’s all do our part individually because we’re part of the solution.

Well, that’s it for Craig’s rant, not too rough today, but let me know what you think. And if you do like what you’ve heard today, please rate us on Apple Podcast or your favorite podcasting app.

[Music]

You can also visit us at legaltalknetwork.com, where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

Outro: Thanks for listening to Lawyer 2 Lawyer, produced by the broadcast professionals at Legal Talk Network. Subscribe to the RSS feed on legaltalknetwork.com or in iTunes.

The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

Continue Reading