Thoughts on federal drought legislation circa October 2015

Some thoughts after today’s Senate Energy and Natural Resources Committee hearing on federal western California New Mexico etc. drought legislation….

On Congressional process

We currently have two “California drought bills” – H.R. 2898 developed by California House Republicans and S. 1894. They are very different. As a matter of process, the details of the difference don’t matter as much as the very fact of their difference. The rest of Congress is unlikely to meddle in California’s water management affairs unless and until its own Congressional delegation can come up with a unified approach. The fact that we’ve got two such different bills means the likelihood of a California drought bill this year is close to nil. Next year is an election year. So California, don’t expect much help from the federal government beyond that which is possible under current authorizations and appropriations.

the downside to litigation

Deputy Secretary of the Interior Mike Connor, in criticizing the House bill, described it as a recipe for litigation. I don’t know enough about the bill to know whether he’s right, but he made a central point that is crucial to water problem solving. Litigation provides narrow solutions and increases constraints. Collaborative, negotiated solutions have the potential to expand options and provide flexibility.

the Middle Rio Grande

Adrian Oglesby, director of the Utton Center* at the University of New Mexico School of Law and vice-chair of the Middle Rio Grande Conservancy District board, suggested a new flexibility on the part of central New Mexico’s largest water agency. The conservancy district, which provides irrigation water to farms and other farm-like properties, has long opposed the creation of water leasing programs that would provide temporary transfers to provide environmental flows. The agency’s position has shifted, Oglesby told the Senators, which creates an opening for S. 1936, sponsored by Tom Udall. Udall’s bill would begin to create the institutional infrastructure for such leasing programs, which could keep water rights attached to old farmland while allowing temporary use of the water elsewhere.

This is a big deal.

Since I handed in my press card, I’ve lost touch with Congressional process issues such that I’m not entirely clear about the path forward for the Udall bill. My impression is that its best hope is to be folded in with other federal drought legislation into some sort of omnibus package. My comments above about the California legislative logjam leave me less than optimistic about S. 1936’s chances this year, but this is the sort of legislation that has to go through a learning process, and the simple fact that the Senators wanted to hear from Adrian today suggests that progress is being made in fleshing this stuff out.

* disclosure: Adrian and the Utton Center have provided me, in my new capacity as University Dude, with funding for my contributions to a study currently underway into resilience and New Mexico water law and policy.


  1. E – Thanks, good point. What is it that Ostrom says here? “We need to … encourage, instead, considerable experimentation at multiple levels”. Diversity in institutional experimentation!

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