Water Rights, Water Needs, and Water Conservation

The western United States seems to be in a perpetual state of drought. Its a story that floats in and out of the national news and causes the rest of us some temporary worry, but quickly fades back under the surface. I'm pretty well informed and until recently almost everything I knew about water rights in California came from Chinatown, but a recent story inspired me to dig in a little bit.

Last week, this story out of the Coachella Valley in Southern California caught my attention and left me feeling confused and a bit disturbed. The surface narrative is pretty simple. A greedy multinational corporation (Nestle) is bottling the dwindling water supply of the region in middle of an historic drought, and shipping it away to be sold. How are they getting away with it, you ask? By teaming with a local Indian tribe (The Morongo) and pumping from the tribe's sovereign land, which is beyond the purview of local water management authorities. 

Its a pretty outrageous story, and it left me with two big questions:

1. Is this legal?

         There is a complex body of laws that governs the relationship between sovereign tribes and the United States government. While the tribes are not fully independent, they do have considerable autonomy, especially over local affairs and in their interactions with state and local governments. The existing reservation structure is based on agreements between the federal government and the various tribes, and courts have consistently ruled that states cannot exercise authority over tribes.

         Without the ability to regulate activity on tribal lands, many government functions that are traditionally reserved to the states are instead controlled by the tribes. For most things, like police services, this simply means the tribe can exercise local control like any other government. The best-known example are the casinos that many tribes have opened casinos in states where they are otherwise illegal. It seems that the Morongo tribe has opened a water bottling plant as a revenue source instead. 

         There is a signficant body of literature on tribal water rights. Water rights are contentious subject in the western United States, in no small part because our layered system of governments creates competition for the supply of water that flows through multiple jurisdictions. Without agreements to regulate water usage and establish rights, those who live upriver can use up a water source and leave those downriver high and dry. In many places tribes (and the federal government) have to fight hard to ensure their land has a fair share of the scarce resources and there is frequent litigation involving states, the federal government, and the tribes to divvy up what little water their is.

The Morongo, it seems, happen to have an upper hand when it comes to access to the blue stuff. After a little bit of digging I discovered that the Morongo have a license issued by the State of California to use water arising within its tribal lands for irrigation. Apparently, though, California has been trying to revoke the license since 2003, accusing the tribe of diverting water for reasons not approved in the state license (like the bottling plant).  The State's efforts are ongoing, but haven't succeeded, so it appears that the Tribe does appear to be acting legally.

    

2. Is it a good idea?

I think this is the more interesting question. The competition between users of the local water supply has created a classic commons problem that government control of the water was created to control. Government manages the supply so that the resource is exhausted. This centralized, long term management is meant to short circuit the incentive individual users would otherwise have to deplete the entire resource before other individual users have the chance to do so. Overuse becomes a self-fulfilling prophecy as individuals rush to collect as much of the resource as they can. Even if they recognize that proper management would be more profitable for everyone in the long term, they must act first or they won't get a share at all.

This seems to be what the Morongo have decided to do. They have access to more water than they need, so they are selling the excess rather than letting it flow on to other living in the surrounding area. From a resource management perspective this is disasterous. While I haven't seen anyone claim outright that Morongo water use is threatening the long term health of the local aquifer or significantly impacting short term supply during the drought, this is exactly the type of conflict that needs to be avoided. While the Tribe's arrangement with Nestle is certainly profitable in the short term, if it does permanent damage to their water access, then they will pay for it in the end. 

As water becomes more scarce competing claims are likely to get worse. While many of these claims can be mitigated by careful government management, when the government's themselves compete, it can lead to bad outcomes.