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Comment by sandworm | Hacker News Reader

There are limits to the governor's powers here. Much of the agricultural water comes from "rights" or easements attached to specific land. Ownership of farm X comes with the right to water from river Y. This is the "free" water often mentioned in news reports. Any reduction in these rights is viewed as a legal "taking" or condemnation of a property right by the state. Lawsuits for compensation will result. And they will likely win. That is why the order avoids mention of agricultural uses.

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You can't give away what you down own.

When the state gave rights to water to land holders it was well before we had the technology to meaningfully impact water levels and thereby impact other peoples access to water.

Since Roman times land ownership went from the highest heavens to the the deepest deeps, but the law was changed after blimps and other aircraft needed it and they certainly didn't need to pay off millions of people in Italy or anywhere else for that matter.

Same goes for pollution. When there are measurable impacts to other people (ie, my small use, home well went dry and now I need to ship in water at a much higher cost), farmers don't get to claim compensation.

I agree in a philosophical sense, but in a U.S. legal sense, water rights are often treated as property, though it depends on precisely when they were granted and with what terms, and why/how they're being abrogated. The U.S.'s "takings clause" jurisprudence has a fairly expansive definition of what constitutes "property", and water rights disputes often end up tangled up in it. If a river literally runs out of water then a farmer probably has no claim, but if the state reallocates its water (to balance with other uses, for environmental reasons, to build up a reserve, etc.) then it ends up in court.

That's a good argument that may or may not stand-up in court.

When the state gave rights to water to land holders it was well before we had the technology to meaningfully impact water levels and thereby impact other peoples access to water.

Droughts, floods, dams, and aqueducts are older than any currently standing government. If water rights laws can already consider those events and structures, they can be adjusted to incorporate manmade climate change as well.

That would be true if there was a "water rights law". The problem is that there is no single law. Water rights are tied to real property law, especially when farming is involved. The American legal tradition, as adopted from the brits, places the property owner as a king on his land. It has great trouble allowing others, non-landowners, to tell that king what he can and cannot do with his land.

Not necessarily. The idiotic prior appropriation system is a matter of state law and takings doctrine are a matter of federal constitutional law. The combination doesn't have a whole lot of case law at the Supreme Court level. It may well be the case that a coordinated change in both federal and state (statutory) law would be enough to work around the takings clause issue.

Even if all else failed it might well be better to bite the rentier tax once than to live with them forever. Remember takings only requires the payment of fair market value, and these water permits have limited alienability.

In Australia the government has bought back vast amounts of water from land owners allocations to save a river system.

>Any reduction in these rights is viewed as a legal "taking" or condemnation of a property right by the state

I wonder what role "eminent domain" may play in an issue like that.

In the US, states have vast, almost unlimited powers to seize private property for the public good, provided they pay fair compensation.

"Eminent domain" is simply the power to condemn, which is limited by the requirement for just compensation under the Takings Clause of the 5th Amendment.

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