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The water wars in the weststarted heating up in 2014. The news and "drought shamming" celebrities are late to the party. In Texas in 2014,  farmers, including a 500 acre cotton farmer, were told they did not have access to  the River Brazos for their crop, but did not restrict the use of cities along the river a well, saying public safety trumps water law principles. The same  year in California, a 1200 acre vegetable operation is only going to plant 400 acres because of water reduction.  In Southern Texas, rice farmers have not had water for 4 years, while Austin continues to consume more and more water. In Nevada, the reservoirs are so low, residents talk about "bath tub rings" around the holding lakes, the record low level expose shore and side wall that haven't seen the sun in a long time.
Nevada and Utah are at odds over shipping water across borders, Kansas is not upset at Colorado Nebraska about leaving the Big 12, but rather about diverting water from the Republican  River that is apportioned to Kansas. Texas and New Mexico are in front of the Supreme Court about water usage.

That vegetable farm that is 2/3ds idle won' t have excess produce to donate to local food shelters as it has in past, nor will it employ as many people. Low lakes means low boating numbers, which cuts into tourism dollars. The laws in the Western States are set up to cause conflict. For example, in some states you can pump as much as you want from under your ground , but if your neighbor pumps it out first, you have no recourse absent a court order. When your neighbor is a new sub development with a passion for orderly neat patches of lush Kentucky blue grass, washed cars and golf courses in a desert , it doesn't  take a fortune teller to see what is coming.


For surface water, prior appropriation is the name of the game in the West. The oldest claim to water, regardless if it is the highest and best use, wins. That is unless the government changes the rules midstream.  When the water runs short, the older users get to ask for the newer users to  reduce their use. When the government allows cities and others to not be bound by that, the result is only the farmers have to reduce use.  That leads to law suits as farmers cry foul and decades old agreements not being honored when it hurts them but being enforced when they try to use them to their advantage.

The lesson is clear, the government responds to the mass the  votes them in. As rural populations decline and we have less connection with production ag that is not orchestrated in story books, pumpkin patch visits and sit com stereotypes, more anti ag decisions are easier made. Iowa doesn't have a prior use doctrine, we have a upstream use policy, which means the upstream user can pretty much dominate how the water is used.

One of the scariest quotes you see when reading about this topic is the lawyer who says "it's a good time to be a Water Lawyer in Texas".  I hope we don't have a similar quote in Iowa. The fix is multi faceted, but what is clear is that in addition to educating the consumers of ag products about how things really work "down on the farm" but also establishing clear rules on how we all get along when the well starts to run dry. The best time to do that is way before the dirt cracks appear wide enough to swallow a Prius and all the stake holders have a time to plan accordingly.
Hmm, that sounds a lot like estate planning. Making the plan and sharing it with those impacted by it before emotions are high, cash is low and anger is boiling makes a hole lot more sense in that arena too.

Sunday, July 12, 2020
  • Patrick B. Dillon
  • Jill Dillon
Dillon Law PC
Patrick B. Dillon enjoys finding solutions to legal issues and catching problems for clients. Pat practices in the Sumner office regularly represents clients in district, associate district and magistrate courts for agricultural, real estate, criminal and collection issues. He drafts wills and trusts, creates estate plans and helps clients through the probate process.
Dillon Law PC
Jill Dillon focuses on family law, estate planning and IRS matters. Jill is a University of Northern Iowa undergraduate (Political Science Cum Laude) and a Drake University Law School graduate. Jill spent extensive time advocating for low income tax payers in front of the IRS and the State of Iowa Department of Revenue while at Drake.

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