From Jill Robbie at the University of Glasgow, a nice explanation of David Schorr’s revisionist account of the evolution of the “doctrine of prior appropriation” in western water law:

For some law and economics scholars, the evolution of the prior appropriation doctrine is explained due to the high value of water in the dry climate and the necessity of a private property regime to ensure maximum utilisation of this valuable natural resource. As a result, the history of prior appropriation is often used as evidence of the superiority of private property over a common property regime for scarce resources.

David challenges this traditional view by digging deep into archival material from the mid to late 19th century in Colorado. Using this material, he shows that the ideology prevalent in 19th century western America was stanchly set against speculation and corporate ownership. The development of prior appropriation, where water rights are restricted by actual use and made transferable was, David argues, motivated by principles of distributive justice rather than economic efficiency and wealth maximisation. Due to this finding, David argues that property regimes are often more nuanced and complicated than a strict distinction between private property and commons. He shows that the prior appropriation theory in Colorado grew from a system of public property and provided private rights to water which were transferrable in order to try and ensure as wide a distribution of rights among actual users as possible.

Robbie’s comparative discussion of Scotland and Colorado, drawing on the distinctions between common and private property embedded in water law in both places, is fascinating and worth a click.

The stretch of the Rio Grande in Albuquerque where we worry most about flood risk is called the “Montaño Gap”, a couple of miles on the west side of the river in the center of town where a school, some homes, and businesses are located in lowlands with essentially no levee protection.

There was an interesting discussion Monday at the meeting of the Middle Rio Grande Conservancy District, one of the government agencies with shared responsibility for the problem (we’ve also got a city, a county, and a flood control district with confusingly overlapping jurisdictions) about how to address the problem. We’ve got a $7 million federal grant for new levee work from FEMA, so we’ve got a path forward for this. But it’s interesting to think about why this problem exists, and why we’re asking the federal taxpayers to bail us out of the problem.

“Flood” is a loaded word. Its common dictionary definition involves water flowing over land “not normally submerged” (that’s OED’s version), but we really don’t gear up the use of “flood” until the water’s reaching places where we’ve built stuff. Just downstream of the Montaño Gap (the name comes from a local street name) are stretches of open riparian forest and some sandbar islands that are also occasionally subject to water flowing over “land not normally submerged”, but when the water reaches those spots we have more modest, neutral language. “Overbanking” is the word if anyone notices, but usually when it happens there the only people who notice are water nerds. When the “overbanking” submerged my bike trail last spring, that’s when it became a “flood”.

This suggests that flooding is in part linked to human agency – not just higher water on the weather/climate side, but also the act of building stuff that’s in the way. The problem is that we tend to blame the former (weather) and think less about the latter (our responsibility for building stuff that’s in the way).

The University of California’s Nicholas Pinter published a piece this week that talks about the role of the federal government in helping sort this question. It has to do with federal flood insurance guidelines, which help provide incentives (both good and bad) for where we build stuff:

The biggest problem with flood maps in the U.S. is that they are drawn as “lines in the sand”—implying that there is a flood risk on one side and none on the other. That is a false and dangerous message. The best way to approach a line on a flood map is like seeing a poisonous snake: Don’t panic, but stay well clear.

This issue was handled deftly by the Obama administration. In January 2015, Obama issued Executive Order 13690, which established the new Federal Flood Risk Management Standard (FFRMS). In brief, this standard called for a more cautious approach to construction at the boundaries of flood hazard zones. The approach was flexible and didn’t even require an admission of climate change as being the cause—just more caution.

In Houston, we built a lot of stuff that’s now in the way of water from Harvey running off the land on the way to the sea. That’s a big part of what’s making this event a “flood”.

We’ve had quite a few opportunities recently to rethink this question. Sadly, as  Pinter points out, two weeks ago the Trump administration rescinded the Obama-era executive order aimed at bringing a bit of sanity to the incentives (good and bad) associated with federal flood insurance.

From Sandra Postel and National Geographic’s Freshwater Initiative, the story of a collaboration among a dairy farmer, an irrigation tech company, and an environmental group to improve water efficiency in growing dairy forage crops and reduce the impact of dairy waste:

A 2015 pilot of the system on a 40-acre (16.2-hectare) field of silage corn at De Jager Farms produced stellar results. Water use efficiency increased by 38 percent, nitrogen use efficiency by 52 percent, and corn yield by 15 percent.

While saving water was Ray’s initial motivation, the reduced leaching of nutrients into groundwater could have broad societal benefits if more dairies adopt this innovative system.