From WILL PARRISH
During the drought, the state has failed to safeguard water supplies and the environment, and a growing number of environmentalists, fishermen, indigenous people, and even some farmers say it’s long past time to fix California’s “water rights” system.
In a decision bursting with symbolism, the California State Water Resources Control Board recently announced its intention to draw down the main water supply reservoir for a half-million people who live just outside of the state capitol to only 12% of capacity by September 30. Lake Folsom on the American River — the main water source for Roseville, Folsom, and other Sacramento suburbs — will plummet to 120,000 acre-feet by that date, according to a forecast by the water board, which announced the plan at an unusually lively Sacramento workshop on June 24.
The artificial lake will therefore be only months away from turning into a dreaded “dead pool,” a state in which a reservoir becomes so low it cannot drain by gravity through a dam’s outlet. Such an outcome would leave area residents scrambling for water — if recent predictions of an El Niño weather pattern fizzle and rain fails to appear later in 2015. If that were to happen, then Folsom could be a harbinger for the rest of California.
Indeed, as the American West lurches through its fourth summer of an historic drought, numerous major reservoirs are at or near historic lows relative to the time of year. New Melones Reservoir on the Stanislaus River in Calaveras and Tuolumne counties, which was only 16% full as of last week, appears likely to meet the same fate as Folsom this year. A study by UC San Diego’s Scripps Institution of Oceanography in 2008, three before the current drought began, warned that the nation’s largest reservoir, Nevada’s Lake Mead (which supplies much of Southern California), has a 50-50 chance of running dry by 2021.
So far, a consensus of state and federal officials is that this state of emergency has come to pass due to a natural disaster beyond their control. Water board member Steven Moore has called the drought “our Hurricane Sandy.” In April, after Jerry Brown stood on a Sierra summit barren of snow and announced the state’s first-ever mandatory water restrictions, an official press release from the governor’s office asserted that for “more than two years, the state’s experts have been managing water resources to ensure that the state survives this drought and is better prepared for the next one.”
But according to critics, the opposite is true. The main reason California’s reservoirs have plummeted to nearly cataclysmic lows, they say, is that federal and state water managers sent enormous quantities of water in recent years to senior water rights holders, especially water districts that supply agribusinesses in the dry San Joaquin Valley.
“Much the way Congress and federal regulators gave Wall Street a huge legal pass and billions in bailout money for crashing the US and global economies last decade, so does the State Water Resources Control Board coddle state and federal water projects and their thirsty contractors for managing their water supplies to the point that the systems on which they depend are themselves circling the drain,” said Tim Stroshane, a water policy analyst for the conservation advocacy group Restore the Delta.
Stroshane notes that, in 2012, the first year of the drought, the US Bureau of Reclamation and California Division of Water Resources (DWR), which manage the Central Valley Project and State Water Project, respectively, awarded full allocations in the hopes that 2013 would be a wet year. And while the projects slashed allocations to zero in 2014-15 for so-called “junior water rights contractors,” senior water rights holders have still received close to their full allotments.
From December through April, the Bureau of Reclamation and DWR pumped 1.25 million acre-feet of water from the Sacramento-San Joaquin River Delta into California’s southern canals and reservoirs, thereby depleting an already limited cold water supply in Lake Shasta and other Northern California reservoirs.
Despite the current dire situation, California water officials have continued to defend their management practices during the drought. “The water we provide has been essential to agriculture and municipalities throughout the state, and we’ve cut back as much as we can to maintain the supply,” said Doug Carlson, a spokesperson for the state Department of Water Resources, in a recent interview.
In contrast, a growing cadre of environmentalists, fishermen, indigenous people, academics, and even some farmers contend that a basic problem is that California’s rivers are dramatically over-allocated. In 2012, Stroshane authored a study of the Sacramento-San Joaquin river systems on behalf of California Water Impact Network (CWIN), which determined that the state and federal governments have handed out water rights that amount to five times more water than what actually flows through these rivers and their tributaries in wet years. In a dry year like this one, the ratio is closer to ten to one. A 2014 UC Davis study reached virtually the same conclusion regarding the state in its entirety.
And at the heart of this extreme over-allocation problem is the state’s archaic water-rights system, which was created more than 160 years ago. This outdated patchwork of rules and legal loopholes creates perverse incentives to pump scarce water supplies, especially if favored elements of the state’s powerful agribusiness sector are the ultimate beneficiary. Moreover, aspects of the system are so complex and counterintuitive that many Californians have no idea how it really works. “People understand there are big oil companies that control the political economy of oil,” Stroshane said. “They understand less about who controls the water in their own rivers, even where they live. It’s incredibly important to understand that.”
Although California’s dysfunctional water-rights system, much like its tax system, has long been considered a political third rail, the historic drought is prompting a growing number of parties to push for plans that finally address it. And some say that perhaps the best legal mechanism available for untangling the state’s water problem is a process called adjudication: a legal framework that may contribute to saving fish and the environment on the Klamath River in Southern Oregon and Northern California and would determine who really has valid water rights in California, how much water can be used, who has priority during shortages, and even whose water use is reasonable and whose is not.
After all, the current system has helped propel the state toward a major crisis in which human population centers could become bereft of water, while fish populations — that only a half-century ago were relatively abundant — continue to plunge toward the dark abyss of extinction.
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During the Gold Rush, miners who crowded into California’s foothills found that water was essential for the pans, sluices, rockers, and other devices used to work promising gravels. But California’s dry summers, in contrast to the year-round moisture that characterizes previous mining frontier states, such as Georgia and Alabama, posed a serious obstacle. So miners decided to divert water, often from great distances, to ensure a profit from nature’s bounty.
American westward expansion privileged the rights of the first arrivals to an area, including the promise that the first settler on public land had the right to buy a homestead for a low price. Similarly, the right to a gold claim went to the first person working it. “First in time, first in right” became a founding principle of California’s legal framework. Known as the doctrine of “prior appropriation,” it soon extended to the right to divert water to work a mining claim.
For irrigation needed for farming, shares were apportioned according to crude 19th-century notions of how much water was required to get forty acres of dry soil to produce a crop. In times of drought, those with the oldest, or most “senior,” rights to water would get it first; those with the newest rights would have to wait at the back of the line. “Prior appropriation” remains the dominant principle in Western water law to this day.
Until 1914, California water rights were obtained either by purchasing land next to a river or by posting a noticed claim at the site of an intended river diversion or dam, and then recording that claim within a specified time at the local county Recorder’s Office. Beginning on December 19, 1914 — the start date for California’s formal administrative system of water rights regulation that had been approved by voters — appropriative water rights came via an application with the state water rights board. Today, that authority is vested in the Division of Water Rights of the State Water Resources Control Board.
“Those who started development and use water first have first priority of rights,” explained Water Board Assistant Deputy Director John O’Hagan, who heads the Water Board’s water rights enforcement division. “That’s where your stacking of rights and priorities to water come in. In a drought year like this year, where water supply is diminished to a point where there isn’t enough water for all water rights in the system, the State Water Board looks to a curtailment process to make sure priority rights are satisfied first.”
California is not alone in its use of prior appropriation for water, although it was first in the US to adopt the system. And the resulting over-appropriation of water, critics say, has created long-term problems throughout the arid West. For example, when officials from seven states divvied up the rights to water in the mighty Colorado River nearly a century ago, it happened to be a wetter period than usual. The states, as a result, vastly overestimated the river’s annual flow. Today, the river’s reserves are especially low and states are still claiming rights to the same amount of water from the Colorado River that they always have — 1.4 trillion gallons a year more than the river actually produces.
In Southern California, water also comes from enormous canals that carry cargoes of Colorado River water like freight trains across the Mojave Desert to Los Angeles and San Diego, and to agricultural swaths of sameness that improbably sprout from the Imperial Valley’s desert sands. These arid regions’ reliance on imported water is almost unparalleled, and is often what comes to mind when thinking about the dysfunction and long-term untenability of California’s water system.
But the Sacramento-San Joaquin River Delta and San Francisco Bay, which make up the largest estuary on the West Coast of the Americas, are equally fraught with problems. The delta is where California’s two largest rivers (the Sacramento and San Joaquin) culminate. It is also subject to one of the world’s most staggering human-wrought manipulations of a watershed: an elaborate infrastructure of dams, reservoirs, power plants, pumping plants, canals, aqueducts, gates, tunnels, and other machinations designed to control exactly where water goes and who gets it.
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On the third page of his classic 1952 novel East of Eden, which explored the lives of Anglo-American families living in the Salinas Valley between the late 1800s and World War II, John Steinbeck offered this succinct summary of most Californians’ relationship with water: “And it never failed that during the dry years the people forgot about the rich years, and during the wet years they lost all memory of the dry years. It was always that way.”
If Steinbeck had been writing about state and federal regulators and how they’ve managed California’s water supply, he might have instead written the following: “And it never failed that even during the dry years they assumed the next year would be a rich year, and during the wet years they lost all memory of the dry years. It was always that way.”
Stroshane, in his role with Restore the Delta, has noted that in the last 28 water years (since the beginning of the 1987–92 drought), above-normal precipitation has occurred just 11 times (39% of the time) in the San Joaquin and Sacramento river basins. Yet even during droughts, the state and federal governments have still provided full allocations to junior water rights holders in the first dry year in hopes that the next year would be an above-normal wet year that would restore full supplies. When those years (and other years following) are not wet, allocations are cut back. In 2014 and again this year, allocations by the Bureau of Reclamation for junior water contractors north and south of the delta have been zero. However, senior water rights holders have received their full allotments in all but five of the 28 years that Stroshane studied.
California’s most powerful senior water rights holders sport a pair of fairly innocuous names: the San Joaquin River Exchange Contractors and the Sacramento River Settlement Contractors. Both have senior water rights, which stretch back virtually to statehood in the case of the former. They are equally bolstered, historians note, by agreements they reached with the federal government at the time that California’s modern water infrastructure was under construction. During the present drought, the legacy of these agreements has been consequential indeed.
As early as 1889, California led the nation in irrigated agriculture with nearly 14,000 farmers watering a million acres, most of them between Stockton and Bakersfield. With the appearance of the modern pump in the 1890s, many turned to groundwater. But California’s most powerful agricultural interests were those that controlled the state’s surface waters. And a single corporation, owned by cattle baron Henry Miller, managed to gobble up the premier water rights of the San Joaquin River, the main artery of the nation’s agricultural breadbasket: the San Joaquin Valley.
By the early-20th century, the Miller-Lux monopoly was in decline and sold its water rights transferred to irrigation companies that today make up the San Joaquin River Exchange Contractors. In the 1930s, these senior water rights holders struck an agreement with the US Bureau of Reclamation, which was then in the midst of a dam-building spree that would persist into the 1980s: In exchange for permitting the Bureau to divert the San Joaquin River’s flows to agribusinesses in Kern and Tulare counties, mostly for agribusiness, the Exchange Contractors would receive an equivalent volume of water from the delta under the exchange contract. The Bureau maintains that supply in Lake Shasta in the northernmost section of the state and sends it down the Sacramento River to the delta.
During the current drought, the Exchange Contractors have received nearly their full allotment of water. And so have the Sacramento River Settlement Contractors, who reached a similar agreement with the Bureau regarding Lake Shasta, Lake Trinity, and other federal reservoir releases. Among these contractors is the Glenn-Colusa Irrigation District, which spans the Sacramento River and many of its westside tributaries. As leading member of the Settlement Contractors, Glenn-Colusa is entitled to an 825,000 acre-foot annual allotment of water from federal reservoirs (equivalent to roughly one-fifth of Lake Shasta’s capacity), and this year is receiving 618,000 acre-feet in spite of these facilities’ dire low levels.
Because of the sheer volume of rights held by the Settlement Contractors, combined with their seniority, many have found it lucrative during the drought to sell their water to wealthy agribusinesses in the San Joaquin Valley that have had their supplies curtailed because of their junior status. Known as “groundwater substitution transfers,” these deals involve “willing sellers” selling their surface water rights back to the bureau or the California Department of Water Resources for as much as $700 an acre-feet, which then transport the water to Bay Area buyers or – in far larger quantities – buyers south of the delta, using the export pumps near Tracy. The main recipients of the water in these deals include the wealthy and famously well-connected Westlands Water District and the Kern County Water Agency, and their almond and pistachio farmers in the dry Western San Joaquin Valley.
After selling their surface water rights, these irrigators north of the delta turn to groundwater pumping to replace what they’ve sold — a system that environmentalists and less well-endowed farmers in areas like Butte County alike say is perverse. “We perceive the export of water from here to Westlands and other south-of-the-delta users as absolutely madness that replicates what’s happened to the Owens Valley and San Joaquin Valley,” said Barbara Vlamis, executive director of the Chico-based group Aqualliance, referring to two California regions known for the plunder of their water supplies. “It’s causing groundwater to decline at an alarming rate here.”
Groundwater substitution transfers, Vlamis contends, are a leading edge of a longer-term water grab that originated with the Kern County Water Bank, which involves pumping of Sacramento Valley groundwater to substitute for water exported to a publicly-funded Kern County water supply controlled by billionaire Stewart Resnick, owner of Paramount Farms, and other powerful ag and water interests.
Groundwater substitution transfers are also contributing to the massive over-pumping of California’s groundwater supply. According to a recent study by NASA, eight trillion gallons of water have been pumped each year since 2011 from aquifers in California’s Central Valley — which includes both the Sacramento Valley north of the delta and the San Joaquin Valley to the south. In some areas, the land is sinking a foot a year as agribusinesses tap groundwater that accumulated from rain that fell 15,000-20,000 years ago.
One of the original sins of California’s water rights system that remains unaddressed, observers note, is that its fails to connect groundwater and surface water, “A lot of states have gotten rid of the groundwater free-for-all approach and have established permitting systems,” says David Keller, a former Petaluma City Councilman and currently Bay Area Director of Friends of the Eel River. “If California is to work its way through these problems, it has to re-do its water rights system. That’s obviously a huge, contentious deal politically, but it has to be done.”
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In 2002, the lower Klamath River in Northern California was the site of the largest recorded fish die-off since Europeans first stepped foot on the continent a half a millennium ago. At least 65,000 adult Chinook salmon died due to low summer water flows and not enough cold water in the river because of diversions by the US Bureau of Reclamation.
The Trinity River, which is technically a tributary of the Klamath, is one of the two so-called “headwaters” of the federal government’s Central Valley Project — the upper Sacramento River being the other. From the bureau’s perspective, the main function of the watersheds is to provide irrigation water for California’s agribusiness sector. Thus, in spite of the drought, the bureau still diverted 595,000 acre-feet of Trinity Reservoir water last year to Sacramento and San Joaquin valley water contractors.
Last August, as temperatures in the lower Klamath soared into the 70s, Native American tribal biologists began to discover fish carcasses washed up on shore near the river’s confluence with the Trinity. More than two hundred tribal members responded by rallying at the Bureau of Reclamation office in Sacramento to demand that the agency release cold water stored either at Upper Klamath Lake or Trinity Reservoir. The bureau eventually released 60,000 acre-feet of cold water from the Trinity side, helping to blunt the grisly scenario that had begun to unfold.
But fish disease levels in the Klamath River have continued to rise this year. During the peak time for salmon migration to the ocean, few juvenile salmon showed up in mid-Klamath River monitoring traps maintained by the Karuk Tribe. And longtime observers are warning of even more dire consequences as the federal government continues to pump its customary quantity of the rivers’ water to the Sacramento Valley in order to satisfy the demands of senior water rights holders and their desire to sell water to the highest bidders. Right now, the Trinity Reservoir’s storage level is even lower than it was at this time last year, and its water temperature is undoubtedly warmer.
“What the Trinity and Klamath are facing is a catastrophe of epic proportions,” said Tom Stokely, a resident of the town of Mt. Shasta and a former Trinity County natural resources planner who is now a policy analyst for the conservation group California Water Impact Network.
Largely owing to the long struggle of some of these Native American tribes to maintain federally acknowledged fishing rights, the Klamath-Trinity is home to the largest population of wild salmon of any river system in California, not to mention one of the healthiest populations of steelhead trout in the Lower 48 (even if badly depleted from the levels of only a few decades ago). It also has the world’s most abundant green sturgeon population. A federal court ruled in 1979 that the tribes are “entitled to as much water on the Reservation lands as they need to protect their hunting and fishing rights,” with a priority date of “time immemorial.”
At issue, critics point out, is the double standard in the prioritization of water rights holders in California. The Klamath-Trinity indigenous people and other tribes who maintain ties to their aboriginal landbases — such as the Round Valley Indian tribes on the Eel River in Mendocino County — have more senior water rights than anyone. Yet the state and federal governments continue to privilege the rights of Central Valley irrigators.
“The Klamath River people were ‘first in time’ and therefore are ‘first in right’ when it comes to allocation of water,” said Thomas Schlosser, a Seattle-based attorney for the Hoopa Valley tribe, in an interview. “Even under United States and California constitutional case law, the rights of irrigation districts to the water is subordinate to that of the tribes.”
Even so, the federal and state governments continue to prioritize water rights held by the Sacramento River Settlement Contractors and others. Last month, the California Department of Water Resources completed a 750-foot rockwall dam in the bay-delta known as the False River Barrier, which creates a barrier between the San Francisco Bay’s tidal saltwater and freshwater entering the delta from the Sacramento and San Joaquin rivers. The barrier ensures the quality of water being exported from north to south.
Environmentalists have lambasted the new dam (which state agencies claim is temporary and will be removed in November), because it partitions the delta, thereby reducing the availability of habitat for endangered fish at a time when they’ve already been pushed to the brink. In April, a trawl that monitors the delta smelt’s population found only one fish (for more, see “The Drought’s Scapegoat,” 7/1).
“Regulatory officials have never pushed the pendulum so far away from protecting our fish and wildlife resources and maximizing the amount of water that’s being delivered for irrigation,” said Gary Bobker, director of the Bay Institute’s Rivers and Delta Program. “It’s an unprecedented situation.”
Meanwhile, many farmers in the Bay Delta are equally upset about the new False River Barrier, which increases the salinity of their water supply. “Essentially, the Bureau and the State are using water that should be used to meet Delta water quality, and instead they’ve got these barriers in the Delta and are depriving a particular set of senior water rights holders, which is a way for them to continue to shirk their responsibilities and send the water to rights holders who are their customers,” Stokely says.
Still another population detrimentally impacted by federal and state water management decisions are federally unrecognized indigenous people such as the Winnemen Wintu of the McCloud River watershed, whose cultural health is inextricably woven with the that of the Sacramento River’s salmon runs. California’s water system is based on their dispossession. The construction of Lake Shasta in the 1940s flooded a large portion of their legally-held landbase, and they have never been repatriated.
This legal double-standard and its broader historical context prompted the United Nations Committee on the Elimination of Racial Discrimination (CERD) to solicit testimony on systemic human rights violations from the State of California and the US government from Winnemen Wintu Chief and Spiritual Leader Caleen Sisk at its every-five-years review conference in Geneva last year.
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On the surface, the State Water Resources Control Board has recently appeared to many observers to be growing a bit more progressive. Last month, the board passed emergency regulations requiring 13,000 Sonoma County property owners near four Russian River tributaries to cut back on water use and report how much water they suck up from their wells in an effort to protect endangered coho salmon and threatened steelhead trout. All four of these tributaries have seen an explosion of wine-grape plantings in the past several years (see “Turning Water Into Wine,” 5/27). Rarely before has the state required that well-water users report how much they’re using.
The water board also announced cutbacks last month on water use by senior water-rights holders dating to 1903, including more than 150 water-rights holders in the San Joaquin and Sacramento valleys, and even the City of San Francisco, which draws water from Yosemite National Park. It’s the first time since the punishing drought of 1977 that the state has curtailed senior water rights.
But, according to critics, these measures are either misdirected or only scratch the surface. The many problems inherent in the state’s existing water-rights system run deep. And, in the case of the Russian River, the state has restricted water use for residents but not for irrigated agriculture – namely, vineyards. Laughably, the regulations call for a cessation of ornamental lawn watering in an area that likely features some of the fewest ornamental lawns per residence of any area of the state
“The State Water Resources Control Board is regulating lawns? What lawns? I challenge you to find ornamental lawns in the Dutch Bill, Green Valley and Atascadero Creek watersheds,” wrote Occidental resident Ann Maurice in a letter to the Water Board. “It is not grass that is causing the problem, it is irrigated vineyards.”
California’s constitution affirms water uses must be reasonable. “No one has a right in California to use water unreasonably, not even the federal government,” Stroshane said. “And the Public Trust Doctrine provides that no one has a vested right to appropriate water in a manner harmful to the interests protected by the public trust, which includes fish.”
The Public Trust Doctrine obligates state government to protect public trust resources — our common heritage of water, rivers, animals, plants, and their interrelationships — whenever feasible. And there is legal precedent in California for using the doctrine to abrogate the water rights of private interests in order to protect the environment.
The case concerned one of the defining issues of California’s turbulent water history: the draining of the creeks that feed Mono Lake — a unique saline-soda lake that’s historically been home to an enormous abundance of wildlife — by the City of Los Angeles. In 1983, in the landmark case National Audubon Society v. Superior Court, the California Supreme Court ruled that, in light of environmental laws, Los Angeles had to give up its water rights and restore Mono Lake. The justices also ruled that state officials have the power to protect public trust “values,” including environmental, recreation, and aesthetic ones, when regulating the use of water.
As many critics of California’s water-rights system note, the public trust doctrine also provides a promising framework for radically re-envisioning how water is apportioned, particularly as climate change and the promise of persistent droughts press the limits of increasingly diminished supplies.
“We’re living in a 21st-century world with a 19th-century rule,” said Bobker of the Bay Institute. “It’s past time for us to re-examine the entire water-rights system, and start to link it to how wasteful or reasonable your water consumption is.”
One possible avenue for elevating the public trust doctrine’s status is the adjudication of water rights — the legal process to determine who has a valid water right, how much water can be used, who has priority during shortages, and even whose water use is reasonable and whose is not. Other states have adjudicated their watersheds. And a years-long adjudication process on the main stem of the Klamath River in Southern Oregon has been an important factor in a settlement deal (which remains contentious) that calls for the removal of four hydroelectric dams in order to safeguard the environment and the fishing rights of native peoples.
As Bobker acknowledges, though, such a re-evaluation on California’s other rivers will not happen until people demand it, including Bay Area residents, whose unique bay-delta ecosystem is being threatened. He noted that changing the state’s water-rights system has long been considered untouchable in California. Then again, so was the regulation of groundwater. Last year, California finally joined the ranks of every other state in the nation when the governor signed legislation to establish “sustainable groundwater” regulations by 2025 (although most environmentalists regard the legislation as woefully inadequate).
Last August, the California Sportfishing Protection Alliance’s Bill Jennings filed a formal complaint with the State Water Resources Control Board alleging that the California Department of Water Resources and US Bureau of Reclamation have been illegally diverting and exporting water, because the two water managers actually have junior water rights compared to many California water users. The alliance asked the water board to investigate and curtail these diversions, and also formally petitioned the water board to initiate a legal adjudication of the Central Valley’s oversubscribed waters.
The complaint could conceivably lead to exactly the outcome that an increasing number of environmentalists, indigenous people, and fishermen have been calling for. If the State Water Board rules against the complaint by California Sportfishing Protection Alliance, then the alliance will have standing to sue to compel the adjudication process to begin, with a goal of bringing water demand into balance with supply.
Others point out that while adjudication is an important step, it must also be accompanied by a popular movement that emphasizes a new relationship with water. According to Bobker, the Bay Area will need to be a locus of water activism from now on. Stroshane agrees, and adds that the issue is tied to the larger system of global capitalism.
“You may imagine that you go to a river and you experience it flowing at one time or another,” he said. “But whatever the state of that river is, it reflects an active intervention of economic interests into the life of that river. There’s a political economy of each river throughout the west, and throughout the world, and California’s may be one of the most warped in favor of wealthy interests.”
(This article originally appeared in the East Bay Express.)