influencing water legislatwe development what to do and what to avoid

WATER RESOURCES BULLETINVOL. 31, NO.4 AMERICAN WATER RESOURCES ASSOCIATION AUGUST 1995

INFLUENCING WATER LEGISLATWE DEVELOPMENTWHAT TO DO AND WHAT TO AVOID'

Ray Jay Davis, George William Sherk, and Donald Phelps2

ABSTRACT: Whomever would affect water policy developmentmust influence the water legislative process. This paper discussesin the context of the Model State Water Allocation Code the follow-ing ten ideas about doing that: (1) seek the right timing for enact-ment; (2) set modest goals; (3) prepare a well-drafted proposal;(4) recognize diversity by offering legislative choices; (5) considerthe impacts of adoption; (6) make alliances; (7) respect executiveinfluence; (8) become involved in legislative interaction; (9) be flexi-ble; and (10) persist. Heeding these ideas, although not guarantee-ing enactment, is sure to be educational for participants and usefulto legislators.(KEY TERMS: water policy; developing water policy; water law;legislative interaction; model water legislation; decision making;prior appropriation law; regulated riparianism.)

INTRODUCTION

As social, economic, demographic, environmental,and other transformations occur in society, pressuresgrow for public policy changes. Americans think ofthese public questions as legal issues; we discuss poli-tics and public welfare as matters of law. Policychanges are reflected in legal modifications intendedto meet public demands. Law is a tool "to organize,channel, legitimize, and in a substantial measure toredirect the course of changes that started outside thelaw" (Hurst, 1950). Whomever would impact policymust influence law.

'What follows are ten illustrative (but not necessari-ly all-inclusive) ideas advanced to stimulate thoughtby persons and groups wishing to affect water policyand legislative development. Using as its context theModel State Water Allocation Code of the AmericanSociety of Civil Engineers (ASCE) (Davis, 1994), this

paper suggests some rational approaches to influenc-ing the lawmaking process. It is not a "top ten" list ordetailed roadmap; it is a discussion of useful ideasconcerning the legislator-citizen interface. These con-cepts are offered for consideration to assist waterresources professionals who wish to have legal effectgiven to their water policy views.

1. TIMING

The legislative process tends to be reactive. Forexample, new dam safety legislation gets passed afterthere has been a dam break (Petroski, 1990). Hencethe right timing is a significant part of the lawmakingprocess. Nothing is quite so powerful as an "ideawhose time has come." Work for enactment of desiredlaws should start early and continue until the matterripens and successful passage follows. The right timemay be founded upon changed legal and hydrologicconditions that mandate legislative action.

Legal developments often dictate timing. When astate law or agency has been "sunset" and conse-quently there is need to enact a new law to keep italive, the time is right to advance a proposal (Adams,1976). When some important judicial or administra-tive decision throws the water regulatory system intoturmoil, reform legislative proposals will be amongthose considered. For example, in Oklahoma thesupreme court declared the state's prior appropriationstatute unconstitutional (Franco-American Charo-laise, Ltd. v. Oklahoma Water Resources Board, 855

1Paper No. 95035 of the Water Resources Bulletin. Discussions are open until April 1, 1996.2Respectively, Professor, J. Reuben Clark Law School, Brigham Young University, Provo, Utah 84602-8000; Professor, College of Law,

Georgia State University, Atlanta, Georgia 30303; and Senior Engineer, Hammond, Collier & Wade-Livingston Associates, Chelan, Washing-ton 98816.

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Pac. 2d 568, 1993). An official state commission cur-rently is studying legislative provisions to fill thelegal vacuum. Now is the right time to propose a newwater allocation code.

Water supply changes may mandate modifyingwater law. If the greenhouse effect causes significanthydrologic alterations, existing legal institutions mayor may not be able to cope. Climate change mayrequire enacting laws regulating behavior causinggreenhouse gas emissions or provide for adjustmentto new climate and hydrologic parameters (Davis,1992). Water use changes also may trigger reexamina-tion of water laws. In Hawaii a state water law reviewcommission has considered legal responses toincreased urban uses replacing diminished agricultur-al demands (Review Commission, 1994).

2. GOALS

Commentary explaining what is sought to beaccomplished by textual provisions helps articulatelegislative goals clearly (Shabman, 1992). In the mas-sive Uniform Commercial Code, a drafting project ofthe American Law Institute and the National Confer-ence of Commissioners on Uniform State Laws, com-mentary follows each section (1960). The commercialcode was enacted throughout the country by legisla-tures who had some understanding of the drafters'intentions from studying the commentary.

What goals should guide preparation of waterrights allocation laws? It has been suggested that"[l]egal institutions [governing water use should]respond to natural conditions, reflect social goals, andfacilitate prudent, equitable, and efficient use ofwater resources" (Johnson & DuMars, 1989). Statewater laws should be practical, comprehensive, fair toall groups affected, administratively efficient, and (tothe extent possible given different geographical andhistorical considerations) uniform.

Reaching such lofty aims is difficult and legislativeproponents may want to set more modest objectives.The legislative process is inherently incremental(Sherk, 1990). Trying for too much at once may resultin nothing happening. Efforts to enact comprehensivemodel state water allocation laws have had only mod-erate success. The federally-funded Bien Code project(just after the turn of the century) influenced legisla..tion in only a few states (Hutchins, 1967). Neither themodel water law of the National Conference of Com-missioners on Uniform State Laws (1958) nor the sug-gested state law of the Council of State Governments(1958) was enacted by any state. Perhaps they triedtoo much.

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By way of contrast, the Restatement (Second) ofTorts provisions prepared by the American Law Insti-tute (1979) which claimed merely to restate existinglaw has been influential in altering the thrust ofwater law in riparian jurisdictions (Dellapenna,1991). Although it does not purport to be legislative,the Restatement has been treated with respect akinto that which courts afford statutes. It may have hadmore impact because it tried to do less.

3. PROPOSAL

One technique for resolving differing views is forparties to write "lawyers' drafts" as a basis for theirnegotiations. Such documents are useful startingpoints for discussing issues. They should be well-prepared; they should set forth completely articulatedsolutions proposed for reaching the goals stated intheir commentary; they should provide references tosources for further information about textual provi-sions.

The American Society of Civil Engineers groupworking on the Model State Water Allocation Codehas prepared such a legislative proposal containingtextual provisions, commentary about each of them,cross-references, and references to existing statutesand other literature. Since 1990, a task committee ofthe ASCE Water Laws Committee has preparedannual drafts of such a document for review by com-mittee members, their advisors, and other reviewers.At present its work is being examined by the WaterRegulatory Standards Committee of ASCE with aview toward formal adoption as standard guidelines(Davis, 1994). This ASCE project is a precursor tosound water policy development in which interactionof engineers, scientists, and practitioners with legisla-tors can help adequately inform lawmakers aboutavailable legal options.

4. CHOICES

It is important that a legislative proposal providelawmakers a choice which will be compatible with theexisting conditions. As the ASCE model water codeproject commenced, it was anticipated that a singlewater use allocation law for consideration throughoutthe country would meet the needs of all 50 states onlyif dual tracks were written, one for prior appropria-tion states and one for riparian jurisdictions.Although eastern and western water law systemsincreasingly had come to mirror one another, concep-tual confluence had yet to advance to the point where

Influencing Water Legislative Development: What To Do And What To Avoid

a single track model state water code would suffice(Sherk, 1991). Drafters recognized that asking statesto consider nationally uniform laws which reflecteddifferent geographical settings and legal traditionsthan their own was unlikely to be fruitful. The prod-uct now offered by the ASCE is two codes — a priorappropriation code for states with that tradition(Matthews, 1994) and a regulated riparian code forstates with the riparian law background (Dellapenna,1994). It is necessary to recognize the remaining legaldiversity of the states by offering them choices fittingtheir circumstances.

Uniformity is an important consideration in pass-ing laws dealing with a mobile resource such aswater. But, even beyond offering alternative codes tothe states, the ASCE Model State Water AllocationCode has some optional provisions, sections which thelegislators might wish to consider but which thedrafters do not consider essential to the integrity ofthe whole process. Also there are alternative wordingsfor some sections. The idea is that the ASCE docu-ment is a buffet from which legislators are urged tomake selections.

This point should not be overstated, however. Eachof the two codes is an integrated whole. Some provi-sions, such as requiring obtaining a permit to receivea water use allocation and allowing water use withoutrestriction to the watercourse where it originates, areessential to the process. This may not be such a seri-ous concern with respect to the model water codebecause some of these important features in it havebeen carried over from the more modern state waterlaws. For example, permitting is now being requiredin many formerly riparian states (Abrams, 1990; Del-lapenna, 1991; Sherk, 1991, 1990).

5. IMPACTS

Perceptions about how legislative proposals willimpact the interests of water resource developmentand management stakeholders will shape attitudesabout suggested water laws. Thus, a municipalitylikely will favor a proposal making it easier to acquirewater rights and will take a harder look at provisionswhich could restrict availability of new waterresources. Advocates of legislative proposals shouldascertain probable impacts from adoption, and knowthe issue equally well from both points of view.Impact analysis shapes whether informed stakehold-ers will support or oppose propositions.

Typically areas in downstream segments of water-sheds have developed uses for water from water-courses prior to areas further upstream. With their

growth the downstream areas expand their economicand political power. Persons in areas of origin ofwater will object to any legislative proposal whichdoes not adequately protect their interests in futuredevelopment from expansion of downstream waterrights. New legislation loosening restrictions on allo-cation and reallocation of water rights in the areas oforigin will impact them (MacDonnell and Howe,1986). Opposition to transfer provisions from suchareas may be diminished by creation of a fund to com-pensate areas of origin, direct payments to personsadversely affected, construction of compensatory stor-age, or provision of low flow insurance such as cropinsurance (Sherk, 1994). The ASCE code establishes acompensatory fund (Dellapenna, 1994).

Traditionally it is easier to prevent legislativechange than it is to secure passage of laws. Groupswith vested interests may be able to block legalchanges altering their competitive position with otherstakeholders. Advocates of legislative change shouldnot underestimate the role that entrenched interestsplay in the legislative arena. While they may beunable to secure legal change favoring themselves,they well may be powerful enough to prevent legalalterations they deem harmful to their interests.

6. ALLIANCES

Establishing alliances with persons and organiza-tions expecting favorable impacts from new legisla-tion enhances odds for enactment. Thus, the IllinoisState Water Survey, which had drafted a weatherresources development law, recognized that alone itlacked sufficient muscle to secure its passage. TheSurvey turned to the Illinois Agricultural Associationwhich had connections with the governor, key leadersof both houses of the legislature, and the relevantcommittee heads. The proposal became law afteractive lobbying by the association (Ackermann et al.,1974).

Possible allies include professional associations ofengineers, lawyers, water resources managers, andthe like — many of whom have regular legislative con-tacts and liaisons. Water user groups, includingmunicipalities, may wish to actively assist. Environ-mental organizations track proposals relating towater quality and quantity. Tribal and local govern-ments are alert to prospective changes affecting theirinterests. Industrial, commercial, and agriculturalgroups maintain ties with lawmakers. The list couldgo on. The strategy is to ally with as many groups aspossible favoring policies that would be furthered bythe proposal.

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Legislative enactment can be facilitated byaddressing potential opposition before submission of alegislative proposal. The process by which instreamflow legislation was enacted in Virginia is illustrative.At the legislative level, any one of a number of groupshad been successful in blocking instream flow legisla-tion. To break the logjam, at the behest of the GeneralAssembly and the State Water Resources ControlBoard, an instream flow task force, on which all thestakeholders were represented, was assembled.Through their representatives, concerns of the stake-holders were addressed. The task force recommenda-tions for instream flow legislation were enactedsubsequently with virtually no political opposition(Collins, 1990).

7. EXECUTIVE

Inertia is powerful. There is the notion that: "If itain't broke, don't fix it." It well may apply to executiveattitudes toward proposals for changing legal institu-tions. New laws can increase responsibilities ofadministrative agencies or decrease their authority;they can increase administrative costs, possibly with-out providing funding to cover them. It may be easierfor administrators to manage with existing lawsrather than risk being stuck with new statutes whichupset established means of performing their missions.

An optional article in the model code establishesprocedures for creating special management areas. Itis taken from the Florida law which divided the stateinto water districts each with its own regulatoryagency. The powers of the overall state regulatoryagency were restricted, a result which might in theFlorida context be the preferable regulatory system(Maloney et al., 1972). In Hawaii there are significantlocal pressures for each island to do its own waterresources regulation instead of centralizing power inHonolulu (Review Commission, 1994). State regula-tors may not favor such proposals to Balkanize regu-lation.

Views about water law proposals by the executiveagency regulating water use will be sought by the leg-islature. That agency will therefore become a majorplayer in the law making process. Proposals like themodel code may affect the agency's procedures, rulemaking powers, data needs, and planning functions.These impacts upon administration should be takeninto account by proponents of legal change. Theymust acknowledge and respect executive influence.

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8. LEGISLATIVE STRUCTURE AND STAFF

The focus of this paper is for water law changeadvocates to become involved in legislative interac-tion. Legislators introduce and rule upon bills. Thelegislative arm of government is, however, larger thanjust the members of the houses of the legislature. Itincludes groups that prepare bills for the legislaturesuch as legislative reference bureaus. Because of timeconstraints on legislators, they must and do relyheavily upon staff work. Persons wishing to influencewater law development must become acquainted withstaff members, respect their knowledge and influence,and solicit their input.

Power is not spread equally among legislators. Inlooking for legislative champions and cultivating theirsupport for proposals, it is important to recognize theinfluence each has within the legislative body. Forexample, in most states water allocation bills arereferred to natural resources committees. Leadersand members of such committees are therefore thekey people.

Interests of legislators also vary widely. The extentto which they have a concern with a water law pro-posal may turn on whether legislators come from awater poor district or a water rich one. The attitude ofa legislator toward, for example, the model code liber-alization of water rights transfer could be foundedupon whether she represents an urban area whichwishes to import additional water or an agriculturalone where concerns are common about the third partyeffects of transfers (Anderson, 1991; Gould, 1988).

9. FLEXIBLE

A corollary to the proposition that legislativeprospects are enhanced by modest goals is that waterlaw change advocates must be flexible. Sound waterallocation regulation can be accomplished in manyways, some of which are unlikely to have been consid-ered by model code drafters. They should accept thepossibility of other workable provisions. Moreover, thecode project has been prepared as a menu from whichlegislators can pick and choose. It succeeds even if itsprovisions are merely considered by a single state. i:twill be even more successful if a compromise versionis enacted in any jurisdiction.

Compromise with opponents of parts of the codemay take the form of omiting from a bill some of thewords, phrases, articles, or chapters which give rise tothe opposition. For example, omission of the chapteron augmentation of water resources through weathermodification will not destroy the integrity of the

Influencing Water Legislative Development: What To Do And What To Avoid

ASCE code, and dropping that chapter would elimi-nate opposition to code enactment that could comefrom cloud seeding opponents.

Generally speaking, proponents of water allocationlegislative changes should "wheel and deal" withopponents (both reasonable and unreasonable ones)who are not convinced of the merits of some provi-sions. Getting the proverbial half loaf is better thanstanding stubbornly upon principle and gaining noth-ing. Of course compromise which guts a legislativeproposal should be resisted. Key components of thecode, such as the permit requirement, allowing useoutside a watershed, facilitating reallocation,instream flow protection and establishing a basis forintegration of water resources planning with waterallocation decisions, should be retained to maintainthe integrity and achieve the purpose of the code.Other parts are negotiable and flexibility about themis an idea to consider.

10. PERSIST

One final idea: persist. Or, "it ain't over until it isover." Should legislative efforts meet initial defeat, tryagain. Often legislation does not pass through thegauntlet the first time around. The time for adoptionof water law changes may not have arrived, and legis-lators need time to think about the proposal. Lawbooks are full of statutes that were not enacted asexpeditiously as sponsors had hoped or expected.

Founding their arguments upon a line of casesextending back beyond Illinois Central Railroad v.Illinois (147 U.S. 387, 1892), environmentalists haveurged application of the "public trust doctrine" to re-adjust existing water rights (Sax, 1975; Johnson,1980; Wilkinson, 1989). They have persisted, andtheir campaign has made headway (Grant, 1987). Thepublic trust concept can be a powerful weapon forthose who would change water law. The example ofthose who have persisted in its advocacy is a usefulnotion for persons seeking implementation of theirpolicy views about new water laws. Keep on trying.

CONCLUSION

Given the nature of the legislative process, passageof the model code provisions may not come to pass.The interaction of stakeholder and legislative groupsmay be such that no legal change occurs, or that thereis no more success than some prior model code effortshave produced. At least the drafting, reviewing, and

disseminating processes have been educational forpersons touched by the effort.

Although legislators have the ultimate decisionpower, proposals like the model water code can helpthem. Several years of effort considering water policyand water law issues have gone into the code propos-al. As a minimum it should be viewed as a draftwhich will save legislators time and effort in fulfillingtheir mandate. It is a surrogate for several years ofstudy by lawmakers, and that perhaps will be itsgreatest influence upon water legislative develop-ment.

ACKNOWLEDGMENTS

The authors wish to thank Steve Stagner (Lloyd, Gosselink,Fowler, Blevins & Matthews, Austin, Texas), John Montford (TexasState Senate, Lubbock, Texas), Ron Lewis (Texas House of Repre-sentatives, Mauriceville, Texas), and Herb Grubb (Texas Society ofProfessional Engineers, Austin, Texas) whose remarks at the ASCENational Convention (Session 1B, October 25, 1993, Dallas, Texas)influenced the authors' development of the concepts expressed inthis paper.

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