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<br />Comments to SWSI, November 3,2003, by John Wiener
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<br />Also often mentioned are (1) ideas centered on decreasing losses in transit or carriage of water,
<br />such as by lining ditches, (2) increasing efficiency of application to crops, such as by changing
<br />from furrow irrigation to gated pipes and surge valves, or sprinkler or drag hose systems, and (3)
<br />decreasing the amount water lost to phreatophyte plants which may consume and transpire a
<br />great deal. Reducing phreatophyte consumption could increase water available for the State to
<br />meet interstate compact obligations, or for environmental purposes. For the farmer, the main
<br />advantage of "salvage" bills is provision of an incentive for water users to increase efficiency, by
<br />providing some reward for the investment needed. The usual idea is that water which is not
<br />used in the conduct of an activity by improved means is "saved" and should be available for other
<br />uses. For the municipalities, the main advantage would be getting water without ending
<br />agricultural activity and with reduced secondary local economic impacts in areas from which
<br />water is moved. But, things are not quite that simple.
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<br />Why is a change in irrigation efficiency a problem?
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<br />There are two elements to consider. First, the idea of beneficial use as the limit on the size of a
<br />water right, and second, the rights of others in return flows of native water.
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<br />If an agricultural water rights holder "saves" water, the amount not consumed is widely thought to
<br />be lost, because the "saved" water is not beneficially used and so not part of a legal
<br />appropriation; "use it or lose it" from the water right is the idea. Thus, there is no reason for a
<br />farmer to invest in better water management, since what is "saved" in water quantity terms
<br />benefits only others on a fully or over-appropriated stream. The public may wish to invest in
<br />reduced non-point pOllution from run-off, but there is no direct financial benefit to the public,
<br />although water treatment costs and environmental impacts are reduced. So, the farmer investing
<br />in efficiency must do so in expectation of sufficiently increased yields to compensate for the
<br />expense of the improvement and the risk of loss of the conserved water. Irrigation improvements
<br />so far, therefore, have more or less closely matched changes in efficiency of delivery and use to
<br />changes in cropping and other features so that the same amount of water is beneficially used on
<br />the farm.
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<br />The idea of what is and is not a beneficial use can be changed by the legislature, as it has been
<br />in the cases of in-stream flow and recreational water rights. This is a conceptual challenge, but
<br />not a soils, hydrology, agronomy, climatology and engineering challenge. Now, the new interest
<br />in leasing from agriculture to others makes it useful to be able to conserve on the farm and
<br />transfer some water.
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<br />A second part of the problem, however, is harder: the underlying purpose of much of water law, in
<br />prior appropriation and the limitation of a water right to beneficial use, is protection of subsequent
<br />uses of the return flow of water from an application back to the river where it can be held in
<br />another water right. This allows reuse in a fashion which was compatible with 19th Century
<br />capacity for engineering and measurement in a cost-effective fashion, to maximize uses of water.
<br />Over time, the adaptation needed to allow permanent changes of use involved establishment of
<br />ways of determination of the historic consumptive use of the water right, and other determinations
<br />of transit loss and seepage, as needed, so that the part of the water on which others could not
<br />reasonably lay claim could be sold and moved, and the remaining part left in the river. These
<br />determinations are very expensive, and subject to intricate proof and challenge, at substantial
<br />expense. Now, we must accelerate the process and reduce its expense in order to achieve
<br />contemporary goals of increasing flexibility of use, allowing temporary transfers, and
<br />accommodating the needs in dry years, as well as helping water stay in agricultural use when
<br />desirable.
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<br />The following description is an effort to identify this problem for "salvage" water legislation, and
<br />increased "water banking" operations, and an approach to solving the problem on a practical
<br />basis. As pressure for new management increases, we may benefit from more Clearly
<br />understanding the limitations and potential of management options. Economic theory has
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