Prestigious California water law professors, you are trifling.

Here you are, brain the size of a planet, and you are critiquing databases?  You have tenure and a blog, and you are spending your valuable thought on small and cautious problems?  The problem of adapting to climate change and the costs that the fucked-up new hydrology will bring are intensely real to the people of the state.  If the drought stays this intense for another couple years, there will be real transition and people will be more hurt than they are now.  We need solutions, and safe propositions about how the State should manage information are not going to help them.  If you have time to search eWRIMS for what is missing, you have time to address real problems and do some interesting new thought.  Your forte is clearly water rights regimes, so you could do good work on the next water rights structure that would make future droughts (and floods) manageable.

  • If the takings issue makes water rights reform impossible, start addressing that problem.  Perhaps the value of the old water right could be traded for something else worth money (the right to grow pot legally, to sequester carbon or recharge groundwater).  Perhaps the value of the old water right could be countered by water use costs (like the cost of extinct fishing runs, or of nitrates in the groundwater, or of subsidence) and the State could come to a deal with current rights holders.  Maybe there’s something in the Public Trust Doctrine or reasonable and beneficial use that could be developed to answer the takings issue.  Maybe the new water rights structure could be a cap and trade or auction variant with the annual proceeds going towards paying off the takings cost.
  • If the water rights structure must be converted to a market (despite my strong doubts that it is physically possible or socially desirable), research the regulations that keep markets from being winner-take-all for the 1% and forcing consolidation of capital.  Use rules to design a market that will be pleasant to live within for smallholders.
  • When the State Board looks to you in two years, saying what should we do, show how other rights structures have worked out.  Research rights structures from other fields (oil? fish? electricity?  how come we don’t have “power rights” the same way we have water rights?) and other locations, talking about what works and what doesn’t.

At the least you could organize a conference around these themes.  But if improving eWRIMS is big proposal for you, than your thinking does not match the scale of the problem.  Fixing eWRIMS barely addresses a contemporary problem and is probably too late anyway.  Fixing eWRIMS is not thinking ahead and preparing in advance for what we should do next. You are brilliant and there is no one else as qualified.  We need more audacious thought from you.

LATER: I have edited this to shade meanings more than I ordinarily would.  I hit “publish” a little fast yesterday afternoon.  Anyway, this has been edited a bit, enough that I should be upfront about that.



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2 responses to “Prestigious California water law professors, you are trifling.

  1. It’s a good question, what will be the way out of this mess, and what can experts do. Will it be new law, better data, revelatory vision, existential disaster? What combination of the above? Probably not new conferences, though I sympathize with the impulse.

  2. onthepublicrecord

    I agree that conferences don’t usually accomplish much. But I haven’t seen one focused tightly on ‘what rights structure would serve California well’. It is always vague filler, too much background and the same few examples of things that might be incrementally working (although I often doubt that too).

    I want something like Hap Dunning’s 1980 conference that developed the Public Trust Doctrine. Not ‘presenting information and letting the attendees drift away’. I want something that draws conclusions and makes recommendations based on explicit values. (If we want small farms, we want this rights structure. If we want economic efficiency, we want this rights structure.)