by John Fleck
Looking back at the Water Association, it is easy to see how someone like Inglewood’s Dixon would see no need to play along. The organization’s structure was informal and it had no legal powers. But perhaps precisely because it was so non-threatening, it did something that in retrospect appears critical: it created a low-cost forum. Membership rules allowed essentially any agency or private entity with an interest in the basin’s water management to join, and an inclusive process allowed people who weren’t members to participate.18 For community discussions about the basin’s water, the West Basin Water Association created a very big tent.
This sounds weak, but Ostrom’s later work on common-pool resource-management regimes found repeated examples of such a “start small” approach. Resource users begin talking about their decisions, in the process developing trust and shared understanding of the resources involved and one another’s needs in using them. In short, they got to know one another.
Creating a Shared Understanding
To solve a common-pool resource problem, you first need a shared understanding of what the resource is. This sounds simple, but in the case of the West Basin, it was not.
With individual pumpers keeping their well data to themselves, the Water Association’s first order of business was a fresh technical analysis of how much groundwater the basin really needed, and how much it had. The association hired an independent expert, a respected consulting engineer named Harold Conklin, to update Mendenhall’s early work on the basin. The findings on the volume of overdraft, the risk of saltwater intrusion, and the cost of fixing the problem, were grim. But as is often the case in such disputes, many of the parties either contested the data or remained oblivious to the risk.19
There’s a tendency in contentious situations like the West Basin’s water battles to think science can solve the problem—that sufficient evidence can be gathered to persuade holdouts, that you can win the policy argument by winning the argument over science. Political scientists call this “scientization.”20 It doesn’t work. Instead, as the reaction to the new West Basin study demonstrated, the science merely becomes a fresh focus of argument. The old arguments between Redondo Beach and its neighbors about what steps to take merely shifted to an argument over the evidence.21
But the West Basin Water Association also shows how “cheap talk” can create a forum for overcoming this kind of a problem. For the first time, pumpers were publicly sharing information about groundwater conditions in the basin. The group’s technical files and the minutes to its meetings were open. It published a newsletter with the motto “let there be no surprises, either pleasant or unpleasant.”22
Harold Conklin’s study laid out some promising approaches to dealing with the basin’s problems, including one that appeared particularly attractive—connecting the region’s water users to the network being built by the Metropolitan Water District of Southern California (known as “Met”) to bring Colorado River water across the desert to the coastal plain. At the time, the West Basin’s communities were outside Met’s service territory, so they would have to convince the agency to annex them into its boundaries to get the water. But Met’s management was strongly opposed to piecemeal annexation, and for good reason. The interconnected nature of the groundwater basins made freeloading a serious risk. Met water was more expensive than groundwater. If some communities connected to Met’s system and reduced their groundwater pumping, that would merely leave more water for those who did not join. Met customers would simply be subsidizing the continued depletion of the region’s aquifers.
The only way for West Basin communities to join Met was to first join among themselves, creating a regional water agency to act as a middleman. On a rainy January day in 1947, West Basin voters went to the polls to pass judgment on the formation of a new regional water district to bring the area’s cities under one umbrella, assessing to all of them the costs of connecting to the Metropolitan system. The measure failed.
The final tally reflected the geographic split plaguing the basin. Coastal residents, sitting atop increasingly salty groundwater, supported paying more to hook up to Met by a margin of as much as five to one. Inland residents of Inglewood and Hawthorne, feeling less threatened by saltwater intrusion, balked at the cost, and voted “no” by a more than three-to-one margin. That was enough to tip the balance, and the attempt to bind the West Basin together to take collective action on its water problems failed.23
Undaunted, the leaders of the coastal communities at greatest risk regrouped and succeeded in a second election, creating the West Basin Municipal Water District in the fall of 1947, without Inglewood and the other inland communities that had balked the first time. The boundaries were less than ideal, with large swaths of the basin left out. But it was not long before Dixon and Inglewood changed their minds, concluding by 1949 that they had more to gain by joining their neighbors and participating in the decisions over who got how much water in the basin, and how its aquifers could be protected.24
One by one, the other holdouts followed Inglewood and decided to join their neighbors, until by the early 1960s the region had a robust institution that covered the basin’s major water users, with the necessary authorities and institutional structure to both manage and distribute imported Colorado River water. Half of the problem had been solved. But Hawthorne, one of the largest inland communities, one of the biggest pumpers, and one of the handful of major water users who had never joined the association, remained a holdout.
Adjudication
Solving the problem of regulating California’s West Basin groundwater pumping proved far more challenging than organizing to bring Colorado River water to the basin. But for self-governance to work, the West Basin needed both. The problem was holdout Hawthorne, happy to play its neighbors for suckers and continue pumping down the aquifer while everyone else tried to save it.
Legally, the basin’s water users turned early to a process called “adjudication,” a court action in which groundwater pumpers sue their neighbors, starting a formal process in which a court is asked to determine who is entitled to how much groundwater. In the old “water’s for fightin’ over” narrative, this sounds like a classic case of water wars, and it can be a high-stakes game. Winners can come away with a bounty, losers can see their wells go dry. But because of the risks and uncertainties, adjudication in Southern California groundwater basins proved a remarkably robust way of steering through the dangerous rapids of self-regulation. It was the prompt needed to get people to the table to negotiate a deal.
Notwithstanding Marc Reisner’s complaint about the Colorado being the world’s “most litigated” river, California water judge Leon Yankwich argued that the courts were a useful societal tool for settling differences. “It is the aim of litigation,” Yankwich wrote, “to achieve social peace.”25 Sometimes the courts can be your friend. That is the way the water agencies were using the courts—not as a field of conflict, but as a tool with which they could fashion collaborative deals.
The adjudication process proceeded in parallel with the establishment of the new West Basin Municipal Water District to import water. But it moved more slowly. The court asked the state Division of Water Resources to referee the matter, which it did by conducting a study whose findings were even grimmer than Harold Conklin’s. If the court adopted the referee’s findings, the basin’s water users would have to all but stop pumping entirely. The stick wielded at this point by the adjudication process was large, creating significant appetite for the carrot of a negotiated alternative that might still allow some groundwater pumping as the region shifted to the use of imported Colorado River water, worked on the construction of a saltwater intrusion barrier, and began learning to recycle its wastewater to make up at least some of the difference.
By the early 1950s, with Met water beginning to flow, basin water users took a critical step—one that demonstrated a new level of trust. At the time, they were unable to agree on exactly how to share the pain of reduced pumping. The cu
ts required seemed simply too deep for many of the users. But realizing that something nevertheless needed to be done, they agreed to an interim deal in which water users would voluntarily reduce the amount of water they took from the aquifer. It was precisely the thing Hardin’s “tragedy of the commons” argued would not happen, but after a decade of collective work, some of the users were ready to make reductions, even without binding commitments from all the others.
While negotiations continued, water users agreed to cut back to the levels they had been pumping back in 1949. It was a modest first step, but it worked. Despite the lack of a binding deal, the voluntary reductions reduced the pressure on the aquifer and the water table began rising in many areas of the basin. But it was a high-risk move, because it made free riding that much easier for those who chose not to participate in the new regime.
In that regard, Hawthorne continued to pose a problem, illustrating the shortcomings of the basin’s two-pronged approach. By the early 1950s, Hawthorne had joined its neighbors by voting to annex itself into the territory of the West Basin Municipal Water District. That gave it access to the Metropolitan Water District’s imported Colorado River water, suggesting that the collective management regime might finally include all the right water users. But Met’s concerns about free riding were well founded. While the other users shifted to more expensive Met water in order to preserve the aquifer, Hawthorne continued to pump cheaper groundwater, playing its neighbors for suckers. The aquifer rose, but a chunk of the precious water being saved merely flowed down beneath the ground into a trough, created by Hawthorne’s willful cheating, that was thirty to forty feet deeper than that of its neighbors. By using the cheaper water, Hawthorne saved $100,000 compared to what it would have cost to use Met’s Colorado River supply.26
Hawthorne continued to sit out the negotiations and complain, but in the end this didn’t matter. The other parties negotiated a compromise that represented a middle ground. More pumping was allowed than would have been permitted under the original state referee’s report, but limitations were imposed on each pumper that, with the addition of collective action to build a saltwater barrier, proved sufficient to stabilize the aquifer. The parties filed the settlement with the court, which had the power to impose the resulting restrictions even on those, like Hawthorne, who had not volunteered to be a part of the deal.
Hawthorne squealed, appealed, lost, and was eventually forced by the court to join its neighbors in jointly managing the West Basin’s water supply. The unpredictable threat posed by litigation, and the power of the courts, created a framework for the region’s water users to work out a deal.
Enforcement and the Future
The West Basin finally had a deal, but how could they be sure that everyone would stick to the terms? Ostrom’s work shows that once an agreement is in place, institutional plumbing is remarkably durable. In a study that she and her colleagues conducted of governance institutions in the West Basin and other areas in Southern California, Ostrom found sturdy networks of trust, reciprocity, and shared understanding of the resource. With reliable public monitoring, compliance was high.27 The parties selected and funded a “watermaster” to monitor basin pumping. The data was audited, trusted, and public. But, crucially, the watermaster was not an enforcement cop. “We want to stay as neutral as possible in order to gain as much voluntary cooperation as possible,” watermaster John Johams told Ostrom.28
Rather than the watermaster playing cop, the systems end up being self-policing. Pumpers have the option of taking a cheating neighbor to court, but Ostrom and her colleagues found that this was almost never necessary. She tells the story of the tiny Moneta Mutual Water Company, which early in the life of the agreement pumped more than its share. The watermaster, in addition to including Moneta’s pumping numbers in the tables of its annual report, included a several-page-long discussion of the problem. Soon after its over-pumping was made public in this fashion, Moneta stopped cheating. Even recalcitrant Hawthorne fell into line—no enforcement required.29
Expanding Policy Options
In addition to regulating groundwater pumping and importing Colorado River water, the West Basin’s governance system created other new policy options. This is one critical difference between cooperation and externally imposed solutions. Once communities develop the social capital—the interpersonal connections, shared understandings, and collaborative institutions—the door is open to far-more-flexible problem solving going forward.
One of the West Basin’s most important new tools was a salinity-intrusion barrier, a system built along the coast to hold saltwater back. Experiments in the early 1950s showed that pumping freshwater down injection wells along the coast could create a “mound” of groundwater that held the saltwater at bay, acting like a dam to help keep it from pushing into the aquifer and contaminating wells in places like Redondo Beach. This would allow more groundwater pumping inland than would otherwise be possible, not entirely eliminating the need for communities like Redondo Beach and Hawthorne to cut back, but softening the blow. Again, the creation of such a system involved collective-action dilemmas: free riders behind the barrier would benefit whether they paid or not. And where would the water come from?
And again, the informal West Basin Water Association provided the forum for lengthy discussions on how to build an institution to do the job and what its boundaries, legal authorities, funding, and responsibilities might be. Once again, as with the West Basin Municipal Water District, the solution came to a vote of the region’s residents about creating yet another overlapping joint water-management district, the Water Replenishment District of Southern California. The boundaries were different this time. West Basin water users realized that they would benefit by collaborating with their neighbors in Central Basin, the adjacent water basin to their east. But the goal was the same: create a broad institutional umbrella to accomplish collective water-management goals that no community could undertake on its own.
Again, Hawthorne mayor James Q. Wedworth balked, saying his community was already paying too much to solve regional water problems. He blamed the problem on a system that had deprived Hawthorne residents of water that should have rightfully been theirs. “If each city had been given fair and equitable water rights, the whole thing would not have come to a vote,” Wedworth said.30 But voters across the basin disagreed, approving the formation of the new district to provide imported Colorado River water as a source for the salinity barrier, and more generally to put surplus imported water back underground for future use.
Like the groundwater adjudication and West Basin Municipal Water District, the institutions have proven remarkably robust. Over the past fifty years, the region has taken active steps to replenish its aquifers, creating a healthy groundwater buffer that communities were able to draw on during the worst droughts of the late twentieth and early twenty-first centuries.31
CHAPTER 7
Turning Off LA’s Tap
WHEN US SECRETARY OF THE Interior Gale Norton slashed Southern California’s deliveries of Colorado River water on January 1, 2003, it looked like Colorado River water was for fighting over. Supplies to the Los Angeles and San Diego metro areas were cut nearly in half, literally overnight. The Imperial Irrigation District, the agricultural empire that is the Colorado River Basin’s largest water user, took a hit too, as the federal government applied pressure to curtail farmers’ alleged overuse.1 For years, California had been taking more than its share, something the federal government and the other states could no longer tolerate. “As secretary and river master,” Norton said, “I must enforce the law of the river.”2
California politicians had warned of the risk. “California cannot afford the immediate reduction by that amount of water,” Southern California Congresswoman Grace Napolitano had said two years earlier, as the conflict was building, adding what sounded like a threat: “Our economy reaches out to the neighboring states so that if we suffer, so do the rest of the states around us.”3
This looked like the great Colorado River water war that everyone in the basin had feared. But the events surrounding Norton’s decision to cut California’s access to surplus water, both the process that led up to it and the events that followed, show how wrong the myth of conflict over water is. Rather than a hostile takeover, the federal government’s action represented the end result of a long, hard negotiation with the Colorado River Basin states to develop rules for sharing as water use in the Lower Basin kept growing.
Foresight
Delphus Carpenter saw this problem coming nearly a century ago. In the early 1900s, there was plenty of water in the Colorado River for the farms and cities of the sparsely populated basin to use as much as they wanted. But Carpenter, the Colorado water lawyer who was the architect of the Colorado River Compact, knew that this would not always be the case, and getting the water-sharing rules right from the beginning would be critical once demand began to overtake supply.
Carpenter was wary of the voracious water needs of rapidly growing California. In 1922, its population was greater than the other six Colorado River Basin states combined. Carpenter feared once California got a big share of the river, it would never give it up. This was a legal issue. One of the central tenets of western water law is the “doctrine of prior appropriation,” the idea that the first people to put water to use have first priority when supplies become scarce. You couldn’t build a new farm upstream that dried up a river for an older farm downstream. The doctrine was primarily applied within a state’s boundaries, but court decisions in the early twentieth century left Carpenter afraid the rules might be applied between states as well, as decisions were made about how to divvy up water crossing state boundaries.4
