Great Lakes Water in the U.S.: Treating a Union as a State

Squabbling amongst states in a federal system may be an inherent feature of federalism. How much the jealousies and petty interests manifest in terms of policies may depend on the balance of power between the federation itself and its member-states. In the case of the E.U., the spat at the state level over how to allocate the tens of thousands of refugees from the Middle East and Northern Africa effectively stymied federal action that could have assuaged the angst. It is no accident that the state governments hold most of the governmental sovereignty in the E.U. federal system. By contrast, the case of the U.S. demonstrates that nearly consolidated power at a federal level can obviate, or stifle, strife between state governments. This alternative is not optimal either, for interstate differences tend to be ignored, resulting in increasing pressure on the federal system itself. How to handle municipal requests for drinking water from Lake Michigan is a case in point.


The complete essay is at Essays on Two Federal Empires.

The basins of the five Great Lakes. Wisconsin is to the left of Lake Michigan (the lake to the southwest in the picture). (wikipedia)

On the Pretentiousness of Senior Water Rights in California

California water regulators proposed a record $1.5 million fine on July 21, 2015 against the Byron Bethany Irrigation District (BBID) in the Sacramento-San Joaquin River Delta. The agency claimed that the district had defied cutbacks that the California Water Resources Control Board had ordered by diverting water from June 13 through June 25. The complaint said that Byron Bethany had consumed an estimated 2,056 acre-feet of water[1] in spite of the fact that the agency had imposed a 25 percent mandatory cutback in urban water use and cuts to major agricultural interests.[2] I contend not only that the district’s board put the interest of a part ahead of the good of the whole (i.e., the common good), but also that the board did so out of a sense of entitlement based on the sheer longevity of the water rights in the district.

The district’s diversion of water up-stream was at the expense of the farmers down-stream. Due to difficulties overall in obtaining water, farmers in California fallowed an estimated 542,000 acres (220,000 hectares) of land in 2015.[3] Almond growers planted new trees nonetheless; almonds are a premium cash-crop there. Even so, both those growers and the siphoning water-district put their own private interests above competing private interests (i.e., other farmers) as well as the good of the whole. 

California’s government was managing water overall in the fourth year of a severe drought. The task was difficult even without self-aggrandizing water-users, and the actions of the latter made it even more difficult, and thus detracted from the public good. Accordingly, the government’s decision that the fine could be as high as $5.1 million if the case goes to a hearing is justified even though the threat is manipulatory in nature.

The mandated water-cuts pertained even to farmers with water rights going back nearly a century. The Byron Bethany district fell into that category.[4] This point played a significant role in the district board’s decision to keep the spigots open for a week. Russell Kagehiro of the BBID reacted to the proposed fine by stating, “The state board is choosing to make an arbitrary example out of B.B.I.D. at the expense of our customers and the communities their hard work supports.”[5] Significantly, he added that the district “will vigorously defend its right to water and due process. The landowners and others that rely upon B.B.I.D.’s senior water rights deserve no less.”[6] That he emphasizes the district’s rights to water—indeed, senior water-rights—says quite a bit about his rationale in taking the water. In short, the underlying mentality is that of presumed superiority over not only other districts, but also the republic of California.

That California is a semi-sovereign republic in the U.S. means that the member-state has the authority to manage the water within its borders unless the U.S. Government claims preemption. Whether or not the California Government can legally override long-held water-rights is a matter for a court to decide. If that government granted the rights, then it could retract them unless doing so would violate the California or U.S. constitution. Absent such a violation, a right is a function of government or else natural. In this case, the rights are presumably contractual and thus rest on a governmental rather than a natural basis. It is in virtue of sovereignty that a government can unilaterally cancel even a contracted right, for sovereignty itself means that no higher authority exists. In modern federalism, governmental sovereignty depends on the domain in question.

Because California’s government was dealing with a drought-crisis, a strong state-interest is satisfied in overriding even long-standing water-rights within California. Moreover, given the water-crisis, the cuts had a rational basis. According to this analysis, the California Government was on solid—indeed, parched—ground in fining the district. Complementing this conclusion is the more damning observation that the district’s unilateral diverting-action based on senior water-rights reflects not only a sordid selfishness, but also a related lack of concern for the welfare of others and even for the public good. Put another way, from the severity of the water-shortage as the context, a presumptuous mentality can be derived.

By analogy, had the first-class passengers on the Titanic insisted on extra room on the limited number of small boats at the expense of the men without such senior rights (i.e., passengers not in first class), the captain would have been well-justified in stepping in to order that the boats be filled to capacity for the good of the whole. That the sense of entitlement of some might actually sabotage not only the livelihoods of others, but also the good of the whole is a testament to just how squalid the mentality is.

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[1] An acre-foot is the amount of water that would cover a square acre up to a foot high.

[2] Adam Nagourney, “California Farm District Accused of Diverting Water,” The New York Times, July 21, 2015.

[3] Reuters, "California's Drought Will Cost the State $2.74 Billion This Year, Report Finds," The Huffington Post, August 18, 2015.

[4] Nagourney, "California Farm District."

[5] Ibid.
[6] Ibid.

On the Southwest American Drought: Looking to China

Lake Mead, a reservoir outside Las Vegas serving 40 million people in Nevada, Arizona, Southern California, and Northern Mexico, was at its lowest level (i.e., below 1,080 feet) in April 2015 since it was formed with the Hoover Dam.[1] Particularly for California, whose snow-melt would again be minimal, the continued drought was quickly turning dire. With a surplus of rain-water coming down on western Washington and Oregon, the U.S. Government could have dusted off FDR’s Civilian Conservation Corps (CCC) to activate the long-term unemployed (and the imprisoned) to assist the Army’s Corps of Engineers in constructing aqueducts and digging canals that would hook up with the extant canals running from the delta area north of Sacramento to southern California. It is not as though the Oregonians and Washingtonians would miss the water, and the Californian farmers could see to it that their best produce finds itself up north. Yet as easy as such a large-scale governmental project seems, the devil is in the details, which can actually be rather huge in themselves. China provides a useful case study that the Americans could, conceivably at least, benefit from—should they endeavor on a truly large-scale governmental project.

By April 2015, the Chinese central government had spent 308 billion yuan ($50 billion) on the South-North Water Transfer Project.[2] It’s sheer size is not for the faint-at-heart. The project “takes water from the Yangtze River and channels it across a half-dozen provinces and more than 1,700 culverts, aqueducts and other man-made structures.”[3] More than 400,000 people had been relocated. In spite of all of this effort, many towns in need of the water were continuing to pump up ground-water—causing the ground to sink even more. The shortage of water in Northern China had prompted cities to over-rely on their respective wells. Unfortunately, getting water that way was cheaper for the cities than from the transferred water via the project’s massive canals. Adding still more incentive to stay with the status quo, the cities in need of water had to build related infrastructure, including pumping stations and processing plants, in order to have access to the water from the project. Leaving this last bit to the city governments was not the smartest move by the project’s planners.

The lapse is particularly sad, given all the credit the Chinese government is due for having thought of and embarked on such a large-scale project capable of solving such a potentially devastating problem. At the time, Californians would have been aware of just how dire a water-shortage can be, yet the government of California was merely constructing more reserve-basins and ordering municipal water utilities to cut water-use by 25 percent. With all the surplus rain-water along the coast and western mountain-range in Oregon and Washington, why the U.S. Government had not stepped in to construct a massive Northwest system of massive canals taking the surfeit runoff to California is baffling to me.

The academic literature of international political economy may provide an answer. To explain why the Asian countries like Taiwan and South Korean have developed economically whereas Latin-American countries such as Panama have not, the literature distinguishes between strong- and weak-state countries. A strong state, or government, is able to resist pressure from society to consume governmental revenue. A strong state, for example, can say no to corporate welfare, for example—not just to spending more tax revenue on food-stamps!—whereas a weak state succumbs to corporate and other lobbying. The U.S. Government is a weak state because of the influence that defense-contractors, Wall Street, and corporate America have on members of Congress and the president. Put another way, after having spent roughly $4 trillion on the U.S. military in Afghanistan and Iraq, and trillions more in fiscal and monetary policy in the wake of the financial crisis of 2008, spending tens of billions more on a water-transport system linking the northwest with the southwest (including Arizona) was not even on the radar screen.

The difference here between China and the United States is not merely one of priorities; the Chinese government is stronger with respect to fending off powerful interests in China who want money from the government. The difference, in other words, is not between democracy and dictatorship; rather, plutocracy is a weak-state form of government (e.g., the U.S.). To be sure, dictatorship brings with it a myriad of problems, but that of being a weak-state incapable of large-scale infrastructure projects is not one of them. In the literature, democracy is associated with weak-states in Latin America—the electorate being able to vote for candidates promising more consumption of government resources at the expense of the sort of investment in infrastructure that could bring in foreign-direct-investment (i.e., multinational corporations). Similarly, we can add plutocracy to the weak-state side of the ledger. Whereas plutocracy is inherently weak from the standpoint of a government being able to resist pressure from private wealth, democracy is not so, as a citizenry can vote in candidates who campaign on resisting corporate welfare, whether to Wall Street or Lockheed Martin.

In short, for all the credit that the Chinese central government deserves in having gotten the huge canals built—and why were not the governments of California, Oregon, Washington, and the U.S. talking in similar terms?—a mammoth project must be designed beforehand with everything covered—from the intake of the water to the flow into municipal pipes. Otherwise, the entire project can falter. “Water, water all around, but not a drop to drink” could otherwise apply. Were the U.S. Government to contemplate such a massive project to solve the water-shortage in the Southwest, the planning should include an analysis of the financial incentives and disincentives that every actor along the process, including at the end-point, would have. Water flows downhill, and the incentives must likewise. Otherwise, a dam could pop up that keeps any of the water from reaching the end-users.

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[1] Reuters, “Lake Mead on Track for Record Low Water Level Amid Drought,” The Huffington Post, April 24, 2015.

[2] Te-Ping Chen, “China Water Project Leaves Some Cities Dry,” The New York Times, April 24, 2015.

[3] Ibid.