October 5, 2015

WATER RIGHTS Discussion About Overhaul Moving into Public Arena

The granting of water rights in California is a very complex system that has remained largely out of the public eye for a century.

The first laws codifying those rights were enacted in 1914 creating that year as an important one in the discussion.  With the current four year drought creating headaches for water districts, municipalities, businesses and homeowners alike, the discussion about who gets what and why is surfacing in town hall meetings, coffee shop chatter and around dinner tables throughout the state.  The media is often noting that rights are either pre-1914 or post-1914—meaning they were either in place when those laws were enacted or granted after that action date.  In fact, the pre-1914 water rights go back 75 years earlier when Gold Rush times first established the need for a water priority system.

In this current year, virtually any one with post-1914 rights might as well have just kissed their allotment goodbye.  For years, those early water rights have gained somewhat of a sacred place in law.  But now they are starting to be questioned.  Why, some are asking, should legislation and rights established 100 or more years ago be sacred.  Why shouldn’t water rights be granted in some other fashion based on need or a priority system not entirely determined by the date the right was established.

The proponents to change saw their viewpoints highlighted quite publicly in the September 13 edition of the San Francisco Chronicle.  A two-page spread in the Chronicle introduced the concept of altering the water rights system by articulating the problems of Mountain House, a 15,000-resident community near Tracy in San Joaquin County.   When first proposed in the early 1990s, this planned community was expected to be built over a 30-year period and eventually have about 15,000 households and 40,000 residents.  It is within a hours or so (no traffic) of Silicon Valley and other Bay Area population centers.  It is a feeder community for Bay Area businesses.  The first foundation was poured in 2003 and the first school opened a year later.

This summer, the water agency serving Mountain House had to turn off the water flow because the rights to supply a city only 10 years old were junior to the historic rights owned by so many others.  City leaders were able to find an alternate source but not until the media made the concern front page news.

Now many are wondering why an almond grower down the road or a community in Southern California should automatically have superior rights to that water just because it was granted that right a century or longer before.

Though historians question whether Mark Twain actually said it (“Whiskey is for drinking; water is for fighting over.”), the sentiment of his famous quote will surely be accurate if the California Legislature starts tweaking 150-year old water rights.  Lawyers all over the state are sharpening their pencils, and opening up wealth management accounts, in anticipation of the battle.

The Chronicle article outlined five possible fixes for the state’s current water shortage problems and water rights issues, but the one that is garnering the most debate is number five.  They are reprinted here in abbreviated form:


1. Start with better information

Little is known about how much water many rights holders actually use—which makes it difficult, if not impossible, for regulators to limit big and illegal draws, and preserve supplies when they’re scarce.

Last year, when levels of freshwater declined in the Sacramento-San Joaquin River Delta, the biggest users there blamed each other for illegally taking water.  State water regulators were ill-equipped to act.

On one side were the U.S. Bureau of Reclamation and the California Department of Water Resources, which move water through the delta to farms and communities farther south. On the other were hundreds of local farmers, growing crops like corn, alfalfa and asparagus.

To figure out who was in the wrong, the State Water Resources Control Board had to do something astonishing—begin collecting basic records on who had water rights and how much they were drawing.  The matter remains unresolved.

Better accounting of water rights, stricter reporting of water use, more measuring gauges on rivers and creeks and increased monitoring would give regulators a better grasp of the water situation.  In turn, that could lead to more efficient water allocation.


2. Ensure reasonable water use

California’s Constitution mandates that people use water reasonably and beneficially. Many suggest using this legal doctrine to clamp down on less efficient uses of water, especially among senior rights holders who have been virtually free of regulation.

State officials have done this before.  For example, they’ve limited draws on rivers after findings that wildlife habitat took priority over crop production.  They once stopped a water agency from wasting supplies by flushing out gopher holes.  But such restrictions have been limited, and many say they should be expanded during dry times.

“I think an argument could be made that if you’re a senior water right user using 4 acre-feet of water on a crop and they could be grown with 3 acre-feet of water, that extra foot may not be being used reasonably or beneficially,” said Peter Gleick, president of the Pacific Institute in Oakland, which advocates for sustainable water policy.


3. Allow easier water transfers

Transfers allow parties that don’t get enough water under the rights system to purchase it from those who do.  Economists argue that with a well-functioning market, water inherently moves to the best uses.

Although some farms, businesses and public agencies have exchanged water under the current system, they face too many obstacles, experts say.  They range from the inability to measure what’s bought and sold to a cumbersome patchwork of local, state and federal regulation.


4. Regulate groundwater

Water shortages in California’s rivers and streams have prompted farmers and others to pump a lot more groundwater—a water source the state does not currently regulate.  Not only has over-pumping begun to deplete aquifers, it’s sucking water out of rivers and creeks above the aquifers, interfering with surface water rights.

California lawmakers last year approved first-ever groundwater regulation designed to keep the state’s aquifers from drying up.  However, the legislation doesn’t require restrictions for at least five years and won’t have much effect for a decade or two.

Some are calling for quicker action in light of a NASA report this summer that showed spots of the Central Valley floor dropping nearly 2 inches a month because of over pumping.


5. Consider system overhaul

Some say the drought, by exposing problems with how California allocates water, represents the perfect opportunity to throw out the water rights system.

“It would make a lot more sense if we could just start from scratch,” said Richard Frank, director of the California Environmental Law and Policy Center at UC Davis. “I hope and expect that we could come up with a system that would bring far more reasonable water use.”

Frank is among several critics who say regulators have the power—and duty—to reshuffle the deck of water rights so that those serving the greatest good get priority.

“At a time of unprecedented shortage, are you saying that growing alfalfa and rice is a higher or better use than serving urban customers up and down the state?” Frank asked.

Even Gov. Jerry Brown has suggested the system’s priorities may need to be re-examined if the drought continues.  The administration, though, has conceded this is a last resort.

More than 100 years’ worth of investment hangs on the water rights system, and many have a lot to lose with any restructuring.

Take Bernie Dietz.  The 75-year-old chemical engineer, who has dabbled in farming his entire life, sank his retirement into a plot of land outside Tracy instead of the stock market.  Before buying his 85 acres and planting about $1 million worth of almond trees, he made sure the parcel was served by a water agency with senior rights.  Dietz, like countless others, made calculations based on existing water rights.  Irrigation districts built canals.  Cities constructed dams.

To limit investment losses, those in favor of overhauling the system suggest California use public funds to buy out longtime water rights holders.  Others recommend that the state phase out water rights slowly, to reduce the pain, or transition the rights to fixed terms.


California’s Water Rights

(Reprinted from the San Francisco Chronicle)

Riparian right: Those who own land along a river or creek are entitled to tap the waterway.  These are the most senior water users.  Riparian rights have been in place since California adopted English common law upon statehood.  They don’t allow users to store water, just divert it to meet immediate needs.

Pre-1914 appropriative rights: Since most people don’t own land along a waterway, the state allows people to acquire water rights on rivers and creeks, then pipe the water off.  Rights staked before 1914, when California began requiring permits for draws, are generally free of regulation and allow rights holders to divert and store water in the amounts originally claimed.

The system follows a principle known as “first in time, first in right.”  The right was determined by actual use—and maintained by continuing use.

Post-1914 appropriative rights: Since 1914, the right to draw water requires approval from the state.  Post-1914 permit holders, also known as junior water rights holders, are the first to be restricted in dry times.