Water rights IV: Property in water: Empirical and historical evidence

(Continuing the series on water rights:)

The empirical work of Ostrom (1990; Ostrom and Gardner, 1993) and others on institutions for governing commons resources has shown that, in practice, common property can be highly successful in managing water resources, depending on the structure and functioning of the institutions involved. She and her collaborators summed up their conclusions (Ostrom et al., 2010):

Elinor Ostrom

Researchers usually distinguish four basic types of governance systems, defined in terms of who controls access to resources: private property, government property, common property, and open access (i.e., no one's property). Research has consistently shown the inefficient outcomes of open access since open access almost always leads to destruction of any resource that is in great demand. This is the problem identified in Hardin's famous essay, although he called open access "commons," which led to substantial subsequent confusion. The other three systems, however, have mixed records in terms of sustaining water resources, including both great successes and massive failures. Thus, the ability of a type of ownership to enhance sustainable resource management depends on a number of other factors…

Many legal and environmental historians have focused on historical transitions between property regimes in water, particularly two major developments in the Anglo-American legal world: the development of the "reasonable use" riparian regime in the early to mid-nineteenth century, and the rejection of riparian rights in favor of the system known as "prior appropriation" in the western United States in the second half of the same century.

Some historians' accounts, beginning with Walter Prescott Webb's "Great Plains Thesis" (Webb, 1931), have supported the economic view associating with aridity with private rights in water (Robert G. Dunbar (1985) 'The Adaptability of Water Law to the Aridity of the West', Journal of the West 24: 57; Percy, 2005). Yet aridity has also been associated with strict state control, as in Karl Wittfogel's (1957) hypothesis associating "hydraulic civilizations" with "oriental despotism", applied to the western American context by Donald Worster (1985).

Other historical work has sought to explain changes in water property regimes less as the result of economic factors than as the product of organic doctrinal development (Getzler, 2004) or distributive factors (Horwitz, 1977; Barca, 2010; Schorr, 2012). Some have seen transitions to private property in water at various junctures as aimed at encouraging economic growth (e.g. Bakken, 1983; Dunbar, 1983), while others (e.g. Reisner and Bates, 1990; Steinberg, 1991; Barca, 2010) have emphasized societal and environmental harms resulting from the same processes.

A particularly interesting (and recent) example of a change in property regimes in water took place in Chile under the Pinochet regime. The Water Code of 1981 replaced the agrarian-reform regime, which had greatly expanded government control of water at the expense of private rights, with a system of private, tradable rights in water (Bauer, 2004). Many (e.g. Schleyer, 1996) viewed the new Chilean law as an ideal system, "a brilliant solution to a universal problem with the economic management of water" (Briscoe et al., 1998: 3). However, more recent empirical work, especially by Bauer (2004), has shown that the privatization of water has not succeeded in meeting the goals of functioning water markets, improved efficiency, or improved access that it was supposed to achieve, and that it has failed to address pressing social, environmental, and political issues.

Next: Public rights. The full article is here.