Water Rights: Let the Buyer Beware.

November 4, 2014

Water rights issues are cropping up with increasing frequency as water becomes a diminishing commodity. In the Puget Sound area this is a somewhat ironic concept, as flooding seems to have been on the uptick and the drizzle for which the area is renown has certainly not disappeared. Flooding however is often attributed to logging and development which causes rainwater to become surface water, rather than groundwater, available through wells. The expansion of the population beyond areas served by water systems has created a proliferation of wells, drawing from largely unknown underground estuaries. This increased burden on the supply of water diminishes the quantity of water available to wells, sometimes with disastrous results.

Care must be taken when purchasing water rights or acquiring property with water rights. The value of property is often dependent on water rights but too often property is purchased without a thorough investigation of those water rights. Scrutiny of a title report may give the buyer false confidence in the availability of water.

In verifying the validity of a water source the inquirer enters into the Byzantine realm of Washington water rights, which defy easy explanation. Broadly speaking there are three levels of inquiry. First water systems must be permitted by the State Department of Ecology. However, there are certain exemptions from state permitting requirements and water systems that predate the water code of 1917 need not be permitted. Roughly 166,000 systems claim to have originated before 1917 but very few claims, if any, have been adjudicated. Next the county determines compliance with health requirements and conducts routine inspections. This is usually a fairly straight forward inquiry for the purchaser.

The last common level of inquiry relates to the assignment of water rights. The right to draw water is assignable. As to any water source that is off-site, the validity of the transfer of water rights must be verified. If there is a well on site, all documents transferring rights to others, or allocating rights of use, must be verified. When creating a joint-use well a great deal of difficulty can be avoided by carefully delineating each user’s rights and duties. This warrants as much care as the determination of the rights and regulations governing a home owners’ association.

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Exxon Valdez: Permissive Standards for Corporations

August 26, 2008

The U.S. Supreme Court is coming under fire for favoring business at the expense of both precedent and principle. The linked article discusses decisions where the interest of business has predominated over the interests of consumers and citizens. This of course was the expected result of Bush’s appointments.

What is more interesting to me is the Court’s willingness to abandon supposedly “conservative” judicial tenets to achieve these results. Members of the Senate Judiciary Committee, for example, have criticized the Court for usurping the role of Congress in the Exxon Valdez decision.

What surprises me is the abandonment of the “law and order” principals that are invoked to incarcerate people when corporate malfeasance is at issue. Mandatory sentencing and long sentences are deemed appropriate for individuals because criminal behavior is reprehensible. For reprehensible corporate behavior, however, the Exxon Valdez decision says that limits are appropriate and the same juries that convict people should not be trusted to penalize corporations.

For this reason the Court declared in the Exxon Valdez decision that henceforth there will be a limit on the discretion of juries in awarding punitive damages for reprehensible behavior by corporations. Exxon received a 4.5 billion dollar reprieve by the Court in reducing the jury award to $500,000,000. This of course is just a small fraction of its continuously record setting profits last quarter.  Certainly a minor inconvenience compared to spending one’s life, or a significant portion of it, in prison.

There are now two standards for “reprehensible conduct” in America. There is the harsh standard levied upon individuals in criminal settings and the lax standard imposed upon corporations in the civil penalty context.

If the Court, and its allies, meant what they said in “law and order” discussions you would expect that reprehensible conduct would be viewed equally hostilely whether it was associated with an individual or a corporation.   Similarly, you would expect juries to be viewed in the same light whether the defendant was an individual accused of a crime or a corporation found to have committed anti-social behavior.


America’s Climate Security Act of 2007

May 28, 2008

For years the Senate Committee on Environment and Public Works was the burial ground for legislation addressing among other things coal powered electricity generation. The U.S. has about a quarter of the world’s known supply of coal and coal is the primary source of electricity in this country. (Hydroelectric power is not as prominent elsewhere as in this region.) It is commonly said that reducing the emissions of coal used to generate electricity is vital to controlling greenhouse gas emissions here. Most seem to believe that this is the cornerstone to any effective policy. In December the committee, with a Democratic majority, passed America’s Climate Security Act of 2007 and it the bill will be debated in the Seante next week.

The Republicans are split on this bill. Larry Craig and other Republicans did all he could to prevent the bill from getting out of committee. The bill though is sponsored by Joe Lieberman and John Warner. (Warner is on the committee.)

The bill would impose emission limits on electric utility, transportation and manufacturing industries and includes financial incentives for reducing emissions, as well as assistance for zero and low carbon technologies. The bill creates carbon trading, the sort of thing that is talked about by Senator McCain in speeches. Senator McCain though has not endorsed the bill. When he was in the Northwest he talked vaguely about legislation that sounded kind of like this bill. Remember that a few years ago McCain had co-sponsored a bill with Lieberman on this topic. As 2008 approached though he seemed to fade from association with this legislation. Lieberman continued the fight and on the current bill Warner’s name appears in place of McCain.

The principal opponents of the bill seem to be the National Association of Manufacturers and the American Council for Capital Formation. Their opposition is adamant but their argument is tired and unimaginative, same old refrain that has proven to be false in the past. They say that jobs will be lost and that the price of electricity will soar. This is exactly what they said in opposition to legislation to curb acid rain but prices actually fell following the legislation without imposing hardship on the work force. They do not to offer a good explanation of why they were wrong then and right now.

A number of environmental groups oppose the bill because it is not as comprehensive as it could be and its standards are not terribly limiting. In fact part of the selling of this bill to industry was that if this isn’t passed something far more stringent might be imposed. Carbon trading is not universally embraced as an effective means of controlling the emissions and many groups balk at the support the bill will give the nuclear industry.In short it is a compromise designed to get through Congress. Senator Bernie Sanders tried mightily to amend the bill to give it more scope and spine but failed. The bill’s adovates say that the bill is a meaningful beginning to a pressing problem. It’s detractors say that it frames the issues for years to come in a manner favorable to industry.

Check out the Senate debate.

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