InDepth: World Wide Water Mafia #04: Water Crimes Worldwide: A Far-Reaching Presence

IC InDepth Team

Mumbai, 30 August 2019

Water-related offenses, including theft and smuggling, are by no means exclusive to developing nations or regions struggling with poverty.

Even parts of southern Europe bear witness to this phenomenon, with the volume of water illicitly consumed paralleling legally sanctioned consumption—effectively translating to 50 percent of water illegally appropriated by 50 percent of users.

In Malta during 2007, unlicensed groundwater extraction even outstripped authorized and lawful water usage.

A similar narrative unfolded in Spain, where an astounding 510,000 illegal wells surfaced in 2005, culminating in the theft of up to 45 percent of annual aquifer water extraction.

The repercussions of this unlawful water utilization encompass encroachment upon and deterioration of protected lands, alongside controversial rezoning and land acquisitions.

Deciphering Water Theft: A Puzzle of Legalities

Determining the legality of water appropriation can prove to be a perplexing endeavor.

Take, for instance, the situation during California’s recent drought, where numerous media reports highlighted the alleged “theft” of water from public hydrants and fire departments, with claims of individuals illicitly filling entire water trucks with thousands of gallons within days.

But can every instance be labeled as water theft? The ordinances and regulations governing hydrant utilization vary widely across California’s communities. Here, a crucial consideration for water management authorities revolves around the potential rupture of the public line due to an improper hydrant valve connection. Some communities permit residents to access water from public hydrants without charge.

In certain cases, individuals or companies can acquire proper hydrant valves from water utilities without incurring any cost.

The community appreciates this effort and doesn’t levy a fee for the valve. Conversely, other communities mandate metering of hydrant water.

In scenarios where water is acquired from a public hydrant sans metering, it breaches regulations and, by the definition adopted in this context, qualifies as water theft.

The introduction of water metering is often a hallmark of communities emphasizing water conservation and implementing tiered pricing structures—where prices ascend based on consumption levels—contrasting with uniform flat rates.

Navigating the Gray Areas: Cases of Alleged Water Theft

The phenomenon known as “straight piping,” entailing the use of small pipes to circumvent city meters, has been implicated in alleged water theft cases within California.

Once again, adherence to community-specific regulations dictates whether straight piping equates to water theft.

However, broad disparities persist across California and the United States concerning the permissible attachment of private lines to public water lines.

In contexts where water usage isn’t metered—an occurrence in many locales—and a fixed monthly fee governs water use, the attachment of a private line to a public one might not run afoul of prevailing regulations and therefore might not be classified as water theft.

In such instances, the primary concern for public utilities often revolves around the potential contamination of the public water supply posed by private water lines.

Grey Area of Water Procurement: Not All Is Theft

Amid California’s tightening drought conditions, the pursuit of water from public sources surged.

Yet, intriguingly, numerous instances did not squarely fit the definition of water theft adopted in this study.

Despite this, an escalation in water loss from the California Aqueduct, from the usual 3 to 4 percent to about 10 percent in 2014, raised concerns among water utility officials regarding a potential sizable diversion of water.

Cultivating Illicit Water Supply: An International and National Phenomenon

Instances of illicit water sourcing are not unique to a particular region; they have manifested globally, particularly in South Asia.

The United States has also witnessed similar scenarios, as evidenced by news reports and statements from law enforcement agencies. Both legal and illegal marijuana cultivation, prevalent in states like California and Oregon, impose substantial demands on water resources.

The process of nurturing a single cannabis plant to indoor harvest consumes approximately 450 gallons (1710 liters) of water, doubling for outdoor cultivation—far surpassing the daily water consumption of an average U.S. individual. Given such demands, marijuana cultivators, regardless of legality, often seek alternative water sources beyond metered taps.

Notably, the dimensions are striking in California’s Siskiyou County, where illegal marijuana cultivators reportedly expend 1.5 to 2 million gallons (5.7 to 7.6 million liters) of unpaid water each day.

This issue is further exacerbated as California accounts for roughly 60 percent of the nation’s marijuana supply. Notably, in the Emerald Triangle encompassing Mendocino, Humboldt, and Trinity counties, streams vital to ecological equilibrium and the survival of threatened species like steelhead and salmon are redirected for marijuana cultivation.

This diversion-driven drought led to about 24 streams drying up in the previous year alone. It becomes evident that the marijuana industry mirrors other forms of agricultural production in its water consumption practices, often disregarding the delicate balance of California’s water resources.

Marijuana Cultivation and Water Sourcing: A Regulatory Puzzle

The act of diverting water from rivers, as often seen in marijuana cultivation practices, raises the question of whether it qualifies as water theft.

Determining this hinges on local water regulations, often resulting in outcomes that defy clear-cut categorization.

Interestingly, even when the federal government holds jurisdiction over public lands, such as protected areas, it doesn’t inherently own the rivers, lakes, and other surface water sources within those lands.

The U.S. Constitution defines water as a retained right, and rivers and surface water in most of the Western U.S. operate within a prior appropriation system.

This implies that ownership and control of water only come into play upon appropriation, impoundment, and allocation of water rights.

Until then, surface water remains subject to various levels of government control and regulation, without necessarily prohibiting utilization.

Certain rivers may benefit from in-stream flow protection regulations aimed at preserving fish habitats, dictating the minimum water volume to be retained in the river, thereby placing constraints on overall extraction.

In the case of California, surface water rights present a unique blend of riparian and appropriation laws.

Navigating the Complex Web of California’s Water Laws

In California, water use laws are a labyrinth of intricacies. Riparian water laws empower landowners to extract water flowing through or beneath their land, without the risk of losing these rights due to non-use over time. However, untangling California’s water use regulations becomes a formidable task due to the complexity of the legal landscape.

Moreover, individuals who arrived in California before 1914 possess senior water rights, affording them priority in water allocation.

This dynamic creates a situation where any water conserved by senior rights holders is directed to junior rights holders, providing limited incentive for seniors to practice water conservation.

Groundwater Regulation and Legal Framework

Historically, groundwater has operated under the “rule of capture,” akin to the principles applied to oil and gas extraction.

This rule asserts that landowners can capture wildlife traversing their land and extract oil from beneath their property.

However, the act of oil extraction actually leads to a migration of fresh oil into the drilled areas, motivating landowners to rapidly extract their oil to prevent its depletion by neighbors.

Nevertheless, growing recognition highlights the inadequacy of applying this traditional rule of capture to groundwater management, including California’s hybrid riparian laws.

This oversight can undermine long-term water sustainability and harm natural ecosystems.

Yet, despite mounting awareness, the presence of influential stakeholders vested in the state’s water laws has resulted in contentious debates over legal reforms.

Determining Water Theft in Marijuana Cultivation

In essence, whether marijuana cultivators’ water extraction from rivers on public lands constitutes theft is contingent upon specific circumstances.

If the water is drawn from public lands lacking prior water rights allocation, it wouldn’t be classified as theft, according to the definition employed in this paper.

However, if water is taken from a source with existing water rights, such an action would indeed qualify as water theft.

Complexity and Nuance in Terminology

Even in cases where a violation of established water rights occurs, many experts hesitate to label it as water theft, driven by two primary reasons.

Firstly, water laws, akin to certain environmental regulations in the United States, fall under administrative rather than criminal laws. As a result, hearings addressing potential breaches of water usage are conducted before the State Resources Control Board of California, rather than within a courtroom.

Official U.S. documents, unlike journalistic accounts or this paper, refrain from employing terms like “theft,” “stealing,” “smuggling,” or “misappropriation” of water.

The lexicon used in administrative law remains neutral and devoid of terms conveying wrongdoing.

Contextualizing the California Drought Controversy

Secondly, within the context of California’s drought, the classification of water shortages as solely caused by theft is met with contention.

Many experts argue that diverse factors, including the lack of collaboration between the state’s northern and southern regions to address water scarcities, played a pivotal role.

Some even suggest that desperation, rather than mere evasion of payments, motivated individuals to access water through unconventional means.

Consequently, the characterization of these unconventional methods as theft or smuggling is viewed by some as excessively severe. This scenario parallels debates concerning whether impoverished populations should be deemed criminals for engaging in activities like illegal coca cultivation or wildlife poaching, often driven by lack of alternatives.

While acknowledging that law violations are at play in water appropriation, it’s vital to consider the motivations behind individuals or businesses transgressing these laws.

The extent of punishment should hinge on factors such as survival versus profiteering, and the scale of the violation.

Balancing these nuances is crucial; for instance, distinguishing between an individual sourcing water for basic domestic needs and an industry evading massive payments for water usage.

Simultaneously, failing to acknowledge any form of water appropriation as problematic undermines the pursuit of sustainable water usage practices.

Next: InDepth: World Wide Water Mafia #05: Complex Tactics of Water Theft in in Urban Areas

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