Desalination: A Fresh Start to Water Policy (Avoiding the Missteps of Western Irrigation)
Abstract
Pricing is likely the most valuable tool in promoting the conservation of water, but there is not yet a statutory system in place to regulate prices or to tax the use of desalinated coastal seawater, a public trust resource. If users of desalinated seawater are charged a cost-reflective price for the water they use, their decisions of whether to build desalination plants and how much desalinated water to use will be much wiser both economically and environmentally. The seemingly imminent process of constructing at least some large coastal desalination plants, to provide water to municipal users, can be compared to dams built by the Bureau of Reclamation (Bureau) in the last century, which provide irrigation water to farmers. This comparison lends valuable insight into the policy objectives that should be promoted for desalination, and the missteps of the Bureau that should be avoided. While current legal challenges to desalination involve attacks at multiple stages of permitting and fights over proper environmental assessment, the question of the rights to take and to use the water seem absent from the debate. It seems the federal government has granted management over coastal seawaters to the States through the Coastal Zone Management Act, but this duty to protect the public trust has not fully manifested itself into a modern water policy. The right to use seawater appears to still be governed under a Rule of Capture, with the only costs discussed being those of energy and capital costs to produce the water, and not any charges for taking or using the water. Although pricing of water is a valuable tool in promoting conservation, there is not yet a statutory system in place to regulate prices or to tax the use of this public trust resource. States need to update legislation to accurately indicate their policies concerning uses of seawater; and they need to promote conservation through the implementation of regulatory mechanisms which ensure that users of desalinated seawater are charged a cost-reflective price for the water they use.