WSP11889

• File Number: 8240.200.10.F.1
• Description: UCRBRIP Fish & Wildlife Evaulation of Program
• Basin: Colorado Mainstem
• Date: 9/27/1993
• Author: John Hamill
• Title: The Upper Colorado River Basin Endangered Fish Recovery Initiative
• Water Supply Pro - Doc Type: Publication

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that it is somehow my obligation to give up or limit o(impair my
long-based rigbt to use that water in order to protect some
species about which I hardly know and certainly have very little
interest?'" This bas all the ingredients of a very, very serious kind
of conflict. Nobody is going to be very interested in giving up a
benefit that they hold in a situation like that. You can't just walk
up to someOne and say, "Give me some of your .property, it
would be good for society for you to do that: Not in this culture.
Our culture values individual freedom and private property very
highly. We wouldn't be very happy about that sort of request.
So, looking at this from a legal perspective, we are now
trying to understand the nature of the property right that
individuals have, in fact, been given. Tbat is the most critical
question. Considering the question of water rights--does a
"property right'. in the case of water assure the holder some fIXed
quantity of water that is immune from any encroachment?
Going back to the analogy witb a private house, although I
own that bouse and that land, I'm very accustomed to the idea
that I can't build anything on that land that I want. It has been
clear since tbe 1920s, at least, that governments have the right to
zone land, whicb limits my ability to develop and use land in any
way I wish. Landowners now understand and accept that. I also
know, as a matter of nuisance law, that I can't use my property
in any way that I like if my use will cause harm to other property
interests or other individuals. Property owners understand that
too, and tbey accept it.
What I think we are doing now is asking questions about
other kinds of limitations on property interests that extend to and
include protection of public values. These values don't necessarily
bring direct benefits to an individual. Also, they aren't recognized
as clear exercises of the police power (as.zoning is) and aren't
based on the need to protect your fellow neighbor's property, or
health, or well-being, but extend to public values that are not
necessarily as well-established, such as ecosystem values.
People are trying to empbasize tbe importance of viewing
resource management issues in a broad way as one way to work
around this problem. So we are beginning, on public lands, for
example, to talk in terms of ecosystem management. But that's
not enough. Habitats don't end at private property lines. We
have to learn bow to integrate private property within the public
property of tbe West to truly have effective. ecosystem
management.
Similarly, in the water resources area, we are thinking and
talking a great deal more in terms of watersheds. Here it helps
us to search for solutions that may be more creative than the
mOre immediate solution that one migbt look to. As John has
done in his program, it helps to look quite broadly within an
entire watersbed at a whole set of options. This is complicated.
My sense is that tbe conflicts in.this area are not amenable
to a quick fIX. Tbere is no immediate change that is going
bappen here. There is no single answer. What is going on here
is a process of evolution in the nature of a property righl. People
ase beginning to understand that there may be good reasons to
alter their image of property--tbat tbere are different notions of
what tbe property interest is that they hold.
On the other hand, society is struggling to determine wbat
ase reasonably-accepted intrusions into people's expectations
about tbeir rights on the use of property. How far can we go?

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We will have continued litigation on this--but we won't
resolve it through litigation.
If you look back at property interests, for example, in
!be water area, back long ago we used to have something
called the "natural flow doctrine" in riparian water law. That
meant that the flow of water in a stream could not be
impaired in any way. That was the defmition of riparian
water law. Tbose who benefitted under that defmition of
riparian water law, of course, did not want to see tbat
defmition of their properly interest in water altered. But it
did change.
It changed wben we were no longer a country in whicb
navigation and free-flowing streams were the highest value
of water. We became an industrial country in which mills
.and water power became important. It then became
necessary to control water to some degree in order to bave
these benefits. So we went to what was called '"a reasonable
use doctrine: This is one example of how the idea of
property, the defmition of property, has changed over time.
Those changes were economically driven--they were made to
meet societal needs. The question today is, do we want to
alter the defInition of property to meet societal values that
are not driven by economics? That is clearly what we are
talking about bere.
These conflicts today have to do with education. They
have to do with getting people to begin to understand tbe
broader world in which they live, where they begin to see
outside their narrow property boundaries. They must begin
to see that their property is part of a system; their water is
part of a system. And, hopefully, they will fInd that tbere are
some benefits to this broader view that will replace the
benefIts tbey lose through tbe older view.
Tbe transition will be a process implemented through
tbe work of people like those in the Bureau of Reclamation.
The Bureau, for instance, is starting to operate their water
storage facilities in a different way than they used to in of4er
to provide increased environmental benefits. So far, tbe
Bureau has been able to provide deliveries wit bout affecting
anyone's property or contract rights. But tbat situation is
changing. California is faced witb a very difficult decision in
that respect. Tbe Sacramento/San Joaquin Delta, the area
that feeds into San Francisco Bay, has suffered enormous
problems in water quality and fish babitat over tbe years.
Tbese problems have become so severe that tbe state is
considering reducing the amount of water that agricultural
and urban water users may take from the Delta. The State
Water Resource Control Board issued an order that would
have, in fact, reduced the historical diversion rigbt of major
water users in this part of California. This reallocation
decision has been put on hold for now, but is likely to occur
. at some point. Is such an order a taking of tbe water users'
property interest? Well, we.'1J see if litigation arises on that
question. [ don't think it is. I think you measure the property
in a water right, not by quantity of water, but by benefits
attained from tbat water. As long as you can generate
equivalent benefits from the available resource, and tbere is
a sound public purpose in reducing the quantity tbat you
may have, that will sustain the Constitutional challenges. But