Requiring water users to pay for ecological damage

FEATURE: A conversation with environmental lawyer Karrigan Börk

Water diversions can harm aquatic ecosystems, riparian habitat, and beaches fed by river sediment. But the people who use water don’t bear the cost of this ecological damage.

“The public pays for it,” says Karrigan Börk, a University of California, Davis law professor who has a PhD in ecology. He is also Co-Director of the California Environmental Law and Policy Center and an Associate Director of the UC Davis Center for Watershed Sciences.

Börk presents a new solution to this problem in a recent Harvard Environmental Law Review paper. His idea was sparked by the fact that developers are required to help pay for the burden that new housing imposes on municipal services.

To likewise link water infrastructure and diversions with their costs to society, Börk proposes requiring water users to pay towards mitigating the environmental harm they cause. This work won the 2024 Morrison Prize as “the most impactful sustainability-related legal academic paper published in North America” published in 2023.

To learn more, Robin Meadows spoke with Börk about how this solution would work, examples of similar approaches already established in the Western water world, and ways of putting this approach in place in California. This conversation has been edited for conciseness and clarity.

Your paper is a bit daunting for those of us who aren’t lawyers. Is there a simple way to explain your argument?

Karrigan Börk [laughing]: Nobody reads legal papers—I can give you the five-point “too long, didn’t read” summary:

Water infrastructure and use impose a lot of costs.
These costs are externalities—that is, they are external to the person building the infrastructure or using the water—and the public pays for them.
These costs can sometimes be mitigated with careful water management or engineering solutions.
Exactions—fees or other conditions imposed to offset public costs when issuing development permits—could be applied to water rights. This would make mitigation costs internal to those who divert or use the water.
Water permitting agencies should impose exactions on new and existing water rights based on the public costs associated with water infrastructure and use.

How did you get this idea?

We spend so much time arguing over constitutional issues of water law because there isn’t always clarity. I was looking around at exactions, which come from a land use context and have a lot of legal clarity.

Developers need a permit from the city to build new housing. If a development goes in, it imposes costs on the city such as more wear and tear on roads, and needing more schools for students and more police officers. These costs are externalities to developers, meaning they don’t pay them and don’t consider them when deciding whether to build a new development.

To impose some of the public costs of development on the developers, cities can condition permits to include exactions, which can include contributing money toward public costs or a piece of their property for a park. Exactions provide dedicated resources to mitigate the problem developers create.

Everyone agrees that property rights in law are strong, but the courts are very clear that exactions are OK. They just have to be closely related to and roughly proportional to the harm of the proposed development. In a 2013 Supreme Court case, for example, Justice Samuel Alito noted, insisting that landowners “internalize the negative externalities of their conduct is a hallmark of responsible land use policy, and we have long sustained such regulations against constitutional attack.”

I thought, maybe we can bring some clarity here to water use regulation. I don’t know why we wouldn’t be able to have exactions as a condition for water use permits—if we could focus on that instead of fighting over water rights, we’d have much better water management. We know from other studies that people use less water when they pay more for it. Exactions would make water users help pay for mitigation and, because these external costs would be internalized, exactions would encourage people to use less water.

Why do you think this approach would work?

By looking in the literature and asking my colleagues, I found several water use-related examples in the West that function like exactions. They aren’t called exactions but they work the same way.

Upper Colorado River Endangered Fish Recovery Program: One example is in the upper basin of the Colorado River, where water users pay for their environmental impacts. The Colorado River has four fish that are found nowhere else—the humpback chub, bonytail chub, razorback sucker, and Colorado pikeminnow—and are super adapted to […]

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