Peter Gleick: Is some California water use unconstitutional?

Posted by: Aqua Blog Maven on June 13, 2009 at 7:42 am

From Peter Gleick at his blog, City Brights:

As of now, Sacramento has some new rules about water use. These rules, at least marginally, begin to address that city’s high level of residential use. The rules put some constraints on the time of day (and day of week, and method) that residents can water their lawns and wash their cars. This little step raises a far more serious and comprehensive question: What water use in California should no longer be considered constitutionally valid?

Water Number: 280. According to the Sacramento Bee, this is the number of gallons of water east Sacramento residents use each day for all uses (the comparable state average is 192). This is one of the highest water consumption rates in the nation. And about 65% of that water is used outdoors, mostly for lawns and landscapes.

The source of this water is taken directly from the Sacramento River and from groundwater wells throughout the North American Groundwater Basin, all of which feed the Sacramento-San Joaquin Delta. During the current water crisis, when reservoirs are low, deliveries increasingly limited, and solutions to the San-Joaquin Delta crisis (and other regional water crises) still out of reach, we need to re-evaluate what are “reasonable” and “beneficial” uses of our strained water resources.

Read more from Peter Gleick by clicking here.

Water wars out West: Keep what you catch!

Posted by: Aqua Blog Maven on June 2, 2009 at 7:53 am

From NPR’s Morning Edition:

The West remains one of the fastest growing regions of the country, and that continues to put pressure on scarce water supplies.

So, Colorado recently made it legal for some homeowners to capture and collect the raindrops and snowflakes that fall on their own roofs. That had been considered stealing because the water would flow into a stream or aquifer, where it belonged to someone else; Utah and Washington state have similar bans.

The change in Colorado may seem minor, but this could signal the beginning of a water-law revolution.

Many people think water-rights need to be revamped, while others disagree:

“Western water-rights laws were done in the 1800s, and they need some serious overhaul,” says Pope. He says the first-in-line basis is inefficient. “It needs to be based on need — it needs to be based on proper use of water. We don’t need to be using drinking water to wash cars and water lawns and gardens and flush toilets,” he says.

Those near the front of the line disagree. Western tribes guard their historic water rights, as do municipalities like Denver. “You have a basic foundation for how water is owned and administered in Colorado, and a wholesale change — to say, ‘Oh yeah, take all the water you want off your roof,’ — is actually a fundamental change in that,” says Chips Barry, general manager at Denver Water.

Read more from NPR’s Morning Edition by clicking here.

Nevada Irrigation District working to shore up water rights

Posted by: Aqua Blog Maven on May 21, 2009 at 7:58 am

From YubaNet.com:

In the minds of many state bureaucrats, farmers, ranchers, and environmentalists, the value of water far surpasses that of gold. The same sentiment is also held by water agencies like Nevada Irrigation District. That is why for the past several years district staff have been actively pursuing the licensing of NID’s ten remaining water right permits.

At the district’s May 13 board meeting directors heard a presentation on the status of this process. According to NID Operations Manager Don Wight, acquiring water rights is a complicated process. While NID already has 18 existing licenses, it must secure licensing approval on 10 use permits for its lower division, which includes Scotts Flat, Rollins and Combie Reservoirs. These permits are for both consumptive and non-consumptive (such as hydropower and recreation) use.

A license is the final confirmation of an appropriative right and remains in effect as long as license conditions are met and the water is put to beneficial use. Beneficial uses in California include domestic, aquaculture, fire protection, fish and wildlife, frost protection, irrigation, industrial use, mining, municipal, power, recreation, and livestock watering.

In the past four years, NID has been working to quantify the amount of water beneficially used under these 10 permits with the goal of making its water rights consistent with historic and current NID operations.

Read more from YubaNet.com by clicking here.

California water rights and flexibility; is there a shadowy mastermind at work?

Posted by: Aqua Blog Maven on April 30, 2009 at 12:30 pm

From the On the Public Record blog, a series of posts about California’s current system of water rights. First the blog begins with laying out two defenses of our current water rights system, one by Laura King Moon of the State Water Contractors Board, given in her testimony to the Little Hoover Commission, and the other given in the position paper of the newly created Public Water Coalition: Two defenses of our current water rights system

Here is the OTPR’s quick summary of our current water rights system.

In another post, the OTPR discusses water infrastructure investments and water rights:

One of my consistent themes is that scarcity requires management. The districts whose water rights guarantee them abundance do not invest nearly enough in their physical systems. It is especially blatant for the districts with the most senior water rights, from before 1914. They have plenty, will never get cut back, and have primitive, wasteful delivery systems. The city of Sacramento, with pre-1914 water rights, doesn’t even have water meters on houses. The city of Folsom is the same. San Juan Water District is the same, and has the highest per capita water use in the state, four times as high as average. I don’t even know how they get their usage that high. Fix leaks? Why bother? With their water rights, they will never run out.

Irrigation districts follow the same pattern. The district with the largest, oldest water rights in the state, Glenn Colusa, has earthen canals and barely any controls. Here. Look. That’s a dirt ditch with the occasional flashboard check structure in it. Scroll around. The whole district is like that2. They have not invested money on tight water control. Why would they? Under our current rights system, they will not face scarcity. Spending money on their physical capital wouldn’t get them anything. This holds true for all the old, big rights holders. When people have rights to an amount of water close to what they (perceive they) need, they invest in capital to use it well. When water rights guarantee abundance, districts invest enough to move it around sloppily, but no more than that. Our current water rights system does not direct investment very well. It gives districts the security to do some investing, but it allows severe underinvestment for the most senior rights holders.

Read the full text of this post from the On the Public Record Blog: California’s Current Water Rights and Investment

In this next post, the OTPR blog expresses surprise that both defenses of our current water rights system tout flexibility:

All this talk about the great flexibility of California water rights is strange to me, because, like, they aren’t. Riparian rights can only be used on land adjacent to the river; water under a riparian right can’t be stored. Appropriative rights can only be used for the permitted point of diversion, place of use and purpose of use1. An appropriative right will have an upper limits on flow and maybe also on annual total diversion. It has permissible dates or season of diversion. Per the Constitution, only beneficial use is legal. If you stop using all or part your water right, the right is destroyed in all or part. The right can be modified for $1000, a change permit and environmental documentation, if the State Water Resources Control Board approves the change application. It is difficult if not impossible to get a new right, since most systems are overallocated; the only reallocation method between contemporary users is a full-fledged court adjudication and watermaster for the river or watershed.

I don’t think these restrictions are entirely nonsensical, although some of them are arbitrary vestiges of older laws. But this is not a flexible water rights system, nor one capable of adapting to additional users or changes in hydrology.

The blogger muses why the water ‘big boys’ are emphasizing flexibility in a system which clearly is not… is it some strategic ploy from a shadowy mastermind???

Check it out from the On the Public Record Blog: California Water Rights and Flexibility

Do you want to know more about California’s water rights? Check out the Water Education Foundation’s Layperson’s Guide to Water Rights. It’s written in plain English, and includes sections on surface water rights, groundwater rights, water transfers and more.

Who owns the rain? Hint: It’s not always homeowners; Facing certain water scarcity, cities and states have begun to wrestle with the conundrum of water rights versus conservation

Posted by: Aqua Blog Maven on April 23, 2009 at 7:59 am

From Popular Mechanics:

Capturing rain may be one of humanity’s most ancient methods of acquiring water, but now it’s coming back in vogue. Rather than press their luck with drought, conservation-conscious homeowners are setting up rudimentary rain barrels and elaborate rainwater storage systems to catch precipitation for nondrinking purposes, such as watering their lawns. But while rainwater may seem like a global common, nowadays it depends on where you live: By capturing rainwater, some homeowners are breaking the law. This has put city and state governments in an awkward position—smack in the middle of competing water users and advocates, often from within their own agencies, of conserving water to protect supplies.

While laws about rainwater collection are often murky, Colorado’s are quite clear: Homeowners do not own the rain that falls on their property. The Rocky Mountain state uses a convoluted mix of first-come, first-serve water rights, some of which date back to the 1850s, and riparian rights that belong to the owners of land lying adjacent to water. A single person catching rain wouldn’t make a difference to water rights holders, according to Brian Werner of the Northern Colorado Water Conservancy District. But if everyone in Denver captured rain, he says, that would upset the state’s 150-year-old water-allocation system. The Colorado Department of Natural Resources estimates that 86 percent of water deliveries go to agriculture, which is already stressed by dwindling supplies. And because 19 states and Mexico draw water from rivers that originate in the Colorado Rockies, backyard water harvesting can have widespread implications (of course, the same goes for water that comes from the tap in these regions).

Read more from Popular Mechanics by clicking here.

Water experts call for restructured water-rights system: State needs to adapt soon, ag professor tells committee

Posted by: Aqua Blog Maven on March 14, 2009 at 7:29 am

From Capital Press:

Water experts told senators Tuesday that California’s system of water rights needs an overhaul to meet a future of greater scarcity and higher demand.

As the demands on a static water supply grow, the state needs to rethink the appropriative water rights, along with the riparian rights derived from English common law that have survived since the Gold Rush, experts said.

As population expands and climate change brings greater scarcity, the state needs to adapt soon, said Michael Hanemann, a professor of agricultural and resource economics at the University of California-Berkeley, told a hearing of the Senate Committee on Natural Resources and Water.

“For water resource management in California, it is temperature that is going to be the main driver of change in our water system,” Hanemann said. “The combined effect is the California water supply is likely to be reduced … at the same time as the demand for water increases. The single best adaptation California can do is to start to get its house in order now.

“(One) possibility is some sort of substantive change in surface water rights, toward a more equal sharing of water,” Hanemann said.

Read more from the Capital Press by clicking here.

In an unusual step, state board warns water-right holders

Posted by: Aqua Blog Maven on March 11, 2009 at 10:46 am

From the California Farm Bureau Federation:

Farmers and ranchers who hold water right permits and licenses could lose access to the state’s rivers and creeks this year if current drought conditions do not improve, the State Water Resources Control Board warned.

In a letter that went out in late February to some 7,400 water right holders in the Sacramento, San Joaquin and Russian rivers and the Central Coast and Tule Lake watersheds, the state water board said unless there is sufficient additional rainfall this season, no water will be available for many surface water diverters.

California’s water supply has dwindled due to three consecutive dry years. And while recent rainfall provided some relief, the storms were not enough to lift the state’s current drought status, with reservoirs far from capacity and the snowpack still below average.

The letter from the board said when there is not enough water for all users, allocations will be made in order of water right priority. In addition, it noted that it might even be necessary this year to curtail more senior water rights, such as riparian rights or pre-1914 rights, which pre-date legislation for appropriating water and do not require a permit from the state water board.

“This is notice to direct diverters that they are in the same boat as the farmers who get water service through contracts with the big State Water Project and the Central Valley Project,” said Chris Scheuring, managing counsel for the California Farm Bureau Federation Natural Resources and Environmental Division.

“Just about all classes and types of agricultural water users are going to have to deal with this drought and are likely facing a very difficult water year,” he said.

Read more from the California Farm Bureau Federation by clicking here.

California farms, cities warned they may lose access to state’s creeks, rivers

Posted by: Aqua Blog Maven on March 3, 2009 at 7:56 am

From the Sacramento Bee:

Thousands of California farms and cities have been warned that their permission to pump water from rivers and creeks could be cut back if the drought worsens.

Such a warning, mailed to about 7,000 water rights holders on Thursday by the state Water Resources Control Board, has not been issued since 1988 amid the state’s last prolonged drought.

The state did not release a list of all cities and farms that will receive the warnings. But state officials said Monday the list includes every city and farm with state water rights in the watersheds of the Sacramento, San Joaquin and Russian rivers as well as the central coast and the Tule Lake region of Lassen County. That would include the city of Sacramento.

The warning is a reminder that a California water right is not absolute. In fact, state regulators have the power to cut off water diversions in the public interest – whether to protect the environment or to stretch a precious natural resource thinned by drought.

“We are giving you fair warning that even if you start the season with water, by the end of the season you may not have water,” said Bill Rukeyser, spokesman for the water board. “People would be able to continue to boil their spaghetti, brush their teeth, take showers, drink water. They would not be able to water their lawns.”

Read more from the Sacramento Bee by clicking here.

Guest commentary: Dam equivalents and Delta Vision’s plan for uncompensated takings

Posted by: Aqua Blog Maven on March 2, 2009 at 8:00 am

Aquafornia is pleased to run this guest commentary by Susan A. Sutton, of SAS Strategies and Perspectives, regarding water rights issues and the current water planning processes underway:

DAM EQUIVALENTS

The Pacific Institute stated in a recent report, More with Less: Agricultural Water Conservation and Efficiency in California, September 2008, that conservation will be comparable to “dam equivalents.” The report stated that “water savings achieved through conservation and efficiency improvements are just as effective as new, centralized water storage and are often less expensive.”

Conservation will assuredly come from farmers, and may include mandatory conservation, without compensation. Area of Origin protections prevent that taking of water, conservation gives our water away for nothing! Northern California will be forced to conserve so that the conserved water can be used elsewhere.

Conservation does not address the currently unrealized increase in the California population and its future demand on water. Long term vision is definitely required by our governing bodies. It will take foresight and courage to move all of California as one unit to the future. Water will set the stage for a reallocation of wealth.

After millions of dollars spent on water bonds, no new water, and drought, I guess we should be relying on those “dam equivalents” to help all of us who received water cut-backs.

There are always unintended consequences for actions and inactions.

UNCOMPENSATED TAKINGS

Californians are experiencing their own form of tsunamis. Each incoming wave is compounding not only the State’s economic viability but individual citizens’ as well.

The first wave was the economic down turn; the implosion of Wall Street. The second wave, the drought, impacted both the urban community with water cut backs and rationing and the agricultural community resulting in land fallowing, increased costs, and massive job losses. The third wave was the regulatory drought, a decision that was a direct impact from the collapse of the Delta. Judge Wagner severely reduced water deliveries to save the Delta Smelt using the Endangered Species Act, an act supported by Congress, to “halt and reverse the trend toward species’ extinction, whatever the cost….” Now the next wave about to hit California is the implementation of the Delta Vision Strategic Plan.

The purpose of the Delta Vision Strategic Plan is to establish a long term, multi-generational, management plan that will address natural resources, infrastructure, land use, governance, and asserts co-equal goals of Delta ecosystem protection with reliable water supplies. Many of the tasks identified require water.

Of concern is the Delta’s Vision’s Flow Requirements. The plan adopted numerous recommendations to increase instream flows and Delta out flows. Specifically the plan calls for:

• increased spring outflows, implement by 2015 (Action 3.4.3);
• increased fall outflows, no later than 2015 (Action 3.4.4);
• increased San Joaquin River spring outflow and fall pulse flows, no later than 2012 and 2015 respectively (Actions 3.4.5 & 3.4.6); and
• increased flows and inundation, timing, and duration of flows in the Yolo Bypass (Action 3.1.1).

The amount of water and where it will come from was not addressed in the Delta Vision Strategic Plan. The plan directs the State Water Resources Control Board to revise the Bay-Delta Water Quality Control Plan to include the new objectives. The plan (Action 3.4.1) charges the Department of Fish and Game with completing recommendations for in-stream flows for the Delta and high priority rivers and streams in the Delta watershed by 2012 and all major rivers and streams by 2018.

How will the State Water Resources Control Board and the Department of Fish and Game determine the quantity of water required for instream flows? What scientific evidence is there that increased flows or pulse flows actually benefit endangered or threatened species? No scientific evidence was presented in the Delta Vision Strategic Plan. How will all the various flow plans meld together and what impact will they have on the species in the Delta?

Two questions surface that are alarming from an agricultural perspective. Where will the water come from and who pays for it? Currently, there is not enough water to accomplish these goals.

The Delta Vision Strategic Plan, requests “the State Board to use its authority to determine reasonable use of water over the coming decades to evolve away from the generally accepted practices of diverting surface water for irrigated agriculture” (Action 4.1.3). It further states that the plan “Creates no expectation of public payment for any water required for ecosystem revitalization” (Action 7.3.1). The net result is an uncompensated reallocation of water.

Conservation appears to be the solution to meet the water demands. One goal is to achieve a 20% reduction in urban per capita water use by year 2020 (Strategy 4.1). The Plan admits that “Even if this target is achieved, current trends indicate that population growth will overtake these conservation gains by 2030.”

What is the equivalent water percentage reduction for agriculture? A state wide agricultural water conservation target is to be established by 2010. The conservation starting point for agricultural water is 800,000 acre feet (Action 4.1.3). Remember farmers already relinquished under the CVPIA (signed into law October 30, 1992) 800,000 acre-feet of water annually to fish and wildlife.

The intended outcome of this plan will be to reallocate water based on a redefined beneficial use, reduce water diversions to include changes in pattern and timing, retire marginal land, and land fallowing.

What is certain is that this far reaching wave will get all our feet wet and could drown out agricultural vitality in California. What then?

Note: Bold added for emphasis [and was added by Susan Sutton].

Read more

Commentary: Vultures circling Sacramento Valley’s precious water; History shows we have reason for concern

Posted by: Aqua Blog Maven on February 26, 2009 at 7:48 am

From the Chico News & Review:

How do you explain the water threats to the Sacramento Valley in 450 words?

The two agencies that create water for agriculture and cities are the California Department of Water Resources and the U.S. Bureau of Reclamation. They operate Shasta and Oroville dams. Unfortunately, they have made commitments for water they don’t have.

There are rights, permits, and licenses that seek more than 10 times the amount of water that could be shared—in other words, too many expectations and commitments for hydrologic reality. Through the decades, like drunken sailors on a binge, speculators acquired land and over-used the water they had and then sought promises from the agencies that can’t possibly be kept.

Speculators have abused their own water supplies, and some have planted permanent crops even when their contracts clearly articulate that there will be years that water transfers may drop to zero. In a panic, speculators are crying foul this year and looking to the public trough and healthy watersheds to bail them out. (Sounds like Wall Street.)

The agencies, for decades, have been salivating over the upper Sacramento Valley groundwater basins—the last large, relatively intact watershed in California. Their multiple plans will cause the complete collapse of the hydrologic system in the heart of the Sacramento Valley, and there is no local protection to stop it.

Read more from the Chico News & Review by clicking here.

The SoCal beast awakens, writes columnist: Be afraid. Be very, very afraid.

Posted by: Aqua Blog Maven on February 24, 2009 at 7:57 am

From the Appeal-Democrat, this column by Harold Kruger:

The great beast from the Southland has awoken. Be afraid. Be very, very afraid.

As this column reported last year, Yuba City, Butte County and a few other State Water Contractors sued the Department of Water Resources, challenging the state’s practice of reducing their water allotments in dry years.

Citing their “area of origin” rights, the plaintiffs want a Sacramento judge to tell DWR to “not deprive those in the area where water originates of the water they need when they need it,” as their attorney noted in a recent court filing.

Now, “area of origin” rights were promised to the counties where the water originated from, in exchange for shipping it south. The northern counties were promised they would get their water when they needed it. Now, while that might sound hard to comprehend when the state is so dry, California also has an extensive history of flooding, much of which has been brought under control by dams and levees. (Not only the Delta has an extensive set of levees, but quite a few central California cities are extensively protected by levees - for example, Sacramento, whom I’ve seen referred to as America’s most flood prone city not named New Orleans.) So at the time with water in abundance (and sometimes overabundance), it seemed like such an easy thing to promise.

OK, back to now, and this story. So Butte County, Yuba City, and a few other water contractors have sued the Department of Water Resources for breach of contract for having their allocations reduced during drought years, citing their “area of origin” rights. That lawsuit has been wending it’s way through the legal system, largely unnoticed until now:

Met and 12 other water users have filed a motion in Sacramento County Superior Court to intervene because there’s a lot at stake here.

Met and the others serve 23 million Californians and irrigate about 750,000 acres.

“Given the severity of the water shortages facing Metropolitan, any further reduction in its SWP supplies … will irreparably harm both Metropolitan and the individuals and entities it serves, and literally threaten Metropolitan’s ability to provide for even the most basic water needs within its service area,” Met’s lawyers say in their motion to intervene.

So stay tuned, folks. Certainly there will be more to come on this. Read the full text of Harold Kruger’s column in the Appeal-Democrat by clicking here.

The Delta smelt and Sacramento River settlement contracts

Posted by: Aqua Blog Maven on February 18, 2009 at 8:07 am

From the Pacific Legal Foundation’s blog, PLF on the ESA, this commentary/analysis:

When it comes to the threatened delta smelt species, most of the attention has focused on the pumps that export water from northern California southward and the extent to which pumping should be restricted for the benefit of the smelt. Litigation in the Eastern District of California led to the invalidation of a 2005 biological opinion due the BiOp’s inadequate consideration of how coordinated state and federal water operations would affect the smelt.

What has largely gone unnoticed in that same litigation, however, are the claims relating to water deliveries that occur upstream of the pumping. Earthjustice, Natural Resources Defense Council, and other environmental organizations argue that the Bureau of Reclamation has unlawfully executed and is illegally implementing 28 long-term Sacramento River settlement renewal contracts because it failed to engage in Endangered Species Act Section 7 consultations for these contracts.

The story behind these settlement contracts is complex, but the main thing to understand is that Reclamation needed to enter into a settlement with Sacramento River water users if it was going to satisfy the needs of the federal Central Valley Project and avoid litigation. Judge Oliver Wanger, who is overseeing the current delta smelt litigation, has noted that the United States and water users entered into the “Settlement Contracts” in order to “avoid conflict while preserving the right of either party in any subsequent water right litigation.”

Read more from the Pacific Legal Foundation’s blog by clicking here.

The Klamath Basin: The tricky business of water rights in the West

Posted by: Aqua Blog Maven on February 13, 2009 at 8:21 am

From AlterNet:

Last week, the Oregon Supreme Court agreed to decide whether irrigators in the Klamath Basin “own” water delivered by the federal Klamath Reclamation Project. This latest development is one more twist in an ongoing property rights case that illustrates both how difficult it can be to determine who holds precisely what rights in western water and how property rights claims, even spurious ones, can frustrate ecosystem restoration efforts.

Usually, claims of ownership are made to recover a resource from someone else. But that’s not the issue here. The United States agrees that when the Project has water available it must deliver that water to these irrigators rather than to anyone else. But the irrigators want more than that. They want the United States to pay them for having limited deliveries from the Project in the drought year of 2001 in order to protect threatened and endangered fish. Having failed so far to get that result in the federal courts, they are now using procedural maneuvering to get another bite at the apple from the Oregon courts.

We detailed the complex history of water use in the Upper Klamath Basin in our 2008 Island Press book, Water War in the Klamath Basin: Macho Law, Combat Biology, and Dirty Politics. In a nutshell, in the critically dry summer of 2001, the federal Bureau of Reclamation closed the headgates of the Klamath Project because the U.S. Fish and Wildlife Service and National Marine Fisheries Service had determined that the needs of endangered suckers in Upper Klamath Lake and threatened salmon in the Klamath River left no water available for irrigation use.

Read more from AlterNet by clicking here.

Central Valley drought may shift California water politics; Westside farmers could make claims to San Joaquin River

Posted by: Aqua Blog Maven on February 2, 2009 at 7:37 am

From the Merced Sun Star:

An unprecedented shift of San Joaquin River water from farmers in the east Valley to those in the west could further complicate the scramble to save crops from drought this year.

At stake is precious San Joaquin River water, which has helped east-side farmers cultivate a multibillion-dollar economy on 1 million acres over the last half century.

Many Westside irrigation districts import water from Northern California. But four of them also have historic rights to the river. Under terms of special contracts drafted decades ago but never exercised, the four could move to the front of the line for water from the San Joaquin. The deal was made to free up enough river water for east-side farmers.

Facing drought and probable water-pumping restrictions in Northern California, federal authorities must decide if they should tap Millerton Lake, where the river is held back by Friant Dam, for the Westsiders.

On the east side, folks are uneasy. Nobody knows how much water could be lost. “In the 50 years-plus of the project, there has never been a call like this on the San Joaquin River,” said Ron Jacobsma, general manager of the Friant Water Users Authority, representing 15,000 east-side farmers.

Read more from the Merced Sun Star by clicking here.

Guest commentary, part 2: Water battle will move to the courts

Posted by: Aqua Blog Maven on January 21, 2009 at 8:18 am

Aquafornia is pleased to run this guest commentary by Susan A. Sutton, of SAS Strategies and Perspectives, regarding water rights issues and the current water planning processes underway. Yesterday, part 1 examined the various planning processes and the possible implications for water rights holders; today’s post discusses the legal issues surrounding water rights. (To read part 1: Reallocation of water rights - all eyes looking north - click here.)

Over two thirds of California’s population is reliant on water from the Delta. The water provides not only drinking water but water to support our abundant agricultural economy that supplies food and fiber to our state and the world, not to mention our service and manufacturing industries.

For over 158 years Californians have worked hard to establish sound stable water laws and to undermine the water rights priority laws will do little to advance the goals of the Delta Vision. The attempt to reallocate water rights would only lead to long standing legal conflicts, social upheaval, and undermine the very goal and vision of the Delta. The Battle will be in the courts if the current movement afoot to reallocate water rights gains momentum.

On July 9, 2008 Virginia Cahill, Deputy Attorney General, responding for Edmund G. Brown Jr., California State Attorney General, responded to John Kirlin, Executive Director for the Delta Vision question, “What legal tools are available to the State of California to reduce and/or relocate water among users in instances of (a) overall allocation, (b) needs for ecosystem protections and (c) emergencies…?”

The overall conclusion of the attorney general’s office presented in the 21 page document was that “The state, acting through the Legislature, the State Water Resources Control Board (SWRCB) and other agencies, and the courts, has considerable ability to reallocate water when necessary to prevent unreasonable use, achieve water quality, protect the public trust, avoid nuisance and respond to emergency situations.”

The opinion in the Attorney Generals letter suggested that the responsibility of protecting environmental and other public resources should be spread to all who divert water including upstream, in Delta, and Delta exporters. The argument presented attempts to ascertain that the basis for the argument is founded in definitions of beneficial use and the public trust doctrine.

Two highly respected Sacramento water attorneys, Sandra Dunn of Somach, Simmons, and Dunn (SSD), and Paul Bartkiewicz of Bartkiewicz, Kronick and Shanahan (BKS), have submitted comments that present numerous arguments in opposition to the Attorney Generals position.
Some of these arguments are as follows:

• “…The constitutional requirement of beneficial use does not serve as a legal basis for reprioritizing one type of existing water use over another.” SSD
• The court must consider the cost and benefits of water diversions on a case-by -case individual basis not on an area wide basis. In addition, the state must consider other factors, such as water needs, costs in terms of financial resources related to the case, and other environmental impacts. SSD
• Water rights are property rights. Water right priorities are “fundamental to California’s system of water law.” “The State is compelled to ascertain whether there exists a solution that will avoid harm to the public trust resources while at the same time not adversely affect prior appropriators’ vested property rights in water.” SSD
• The Attorney General referred to a draft SWRCB Decision 1630 as evidence to justify that each Delta diverter should contribute proportionally to restoration. The SWRCB draft was never adopted. This ploy was used because there was no case law to justify such an action. SSD
• A water use is determined to be reasonable based on a “fact specific determination”. “In order for an existing beneficial water user to lose its water rights,…a finding must be made that the use is unreasonable, not simply that there is more valued use for that water, in someone else’s opinion.” Water cannot be reallocated due to a change in how the water is used or for a “high” valued use. SSD
• “The doctrine of reasonable and beneficial use is not a legal basis for reprioritizing between various reasonable uses of water. A use must first be determined as being unreasonable before that use is reallocated to another.” SSD
• “California law supports only regulatory water reallocations that are based on determinations of causation and proportionality.” “No California court decision under the public trust or the California Constitution’s Article X, section 2 — the “reasonable use” provision — has reallocated water from a water user: (1) to address environmental impacts caused by others; or (2) in an amount that exceeds the water user’s own proportional limits.” BKS
• “Before reallocating any water from existing diversions and uses under upstream water rights to restore the Delta’s ecosystem, the SWRCB must hold an evidentiary hearing and make detailed findings on the relative impacts of upstream, in-Delta and Delta-export diversions on the Delta’s fishery and other elements of the Delta’s ecosystem.” BKS

The solution is simple. Support the current water laws and priority system and let the free market prevail.
Special thanks to Sandra Dunn of Somach Simmons and Dunn, and Paul Bartkiewicz of Bartkiewicz Kronick and Shanahan.

A Pocket Guide to Solving the California Water Crisis

The following is a short list of key elements that should be incorporated into any state wide water plan. When talking water be sure to support these main concepts.

• Maintain current priority water rights laws and area of origin
• Build new storage contiguous with restoration
• Support the idea that each area in California must be water self-reliant
• Support conservation and restoration simultaneous with new water development
• Eliminate the striped bass program, a non-native predatory species.
• Screen all diversions.
• Support water transfers in the free market system
• Support Delta environmental solutions that are based on scientific fact, reasonableness, and are cost effective
• Reassess and reallocate environmental funding from non-essential out-of Delta projects to in-Delta projects
• Link conveyance with new storage, no conveyance without storage
• Identify and halt illegal water diversions
• Maintain current levee and bypass systems
• Support captive brood stock programs by both public and private sectors
• Support ground water and conjunctive use
• Don’t deprive one area at the expense of another

–Susan A Sutton

Guest commentary: Reallocation of California water rights – all eyes looking north

Posted by: Aqua Blog Maven on January 20, 2009 at 8:13 am

Aquafornia is pleased to bring you this guest commentary from Susan A. Sutton of SAS Strategies and Perspectives regarding the ongoing Delta planning processes and the possible implications to those currently holding water rights. Susan helped found a non-profit organization which helps families with water rights issues, and writes a monthly newsletter regarding ongoing water rights issues. For more information on Susan, please see related Capitol Press article following this post.

This is part one of two.  The second part will run tomorrow.

Throughout the history of California, water has been identified as a key element from which all life springs and a source of much consternation in both times of drought and times of ample, flood. To maintain peace within the basically arid state, a water rights system was established that has been in place since California became a State. The water right system identified priority rights as senior water rights, given to those who obtained the earliest water rights as opposed to junior water rights, those rights that were established after, thus the concept of “first in time, first in right”.

There are numerous ongoing actions, plans and discussions that are being considered that all have one basic element in common; the requirement for more water. Solutions being recommend and subsequently considered may result in the reallocation of California’s long standing water rights.

The following is a review of some of those actions/discussions:

Delta Vision. The purpose of the Delta Vision is to establish a long term, multi-generational, management plan that will address natural resources, infrastructure, land use, governance, and asserts co-equal goals of the Delta ecosystem protection with reliable water supplies. All the tasks identified require water. There is not enough un-appropriated water to accomplish this goal.

In order to meet all these water requirements, political pressure will call for more conservation, conjunctive use of surface and groundwater, water desalinization and new additional storage. In addition, there is the potential to reduce water deliveries from junior water rights holders (diversions), reassess beneficial use (look at crops), and reallocate water from one use to the Delta recovery. Concerns:

• Proposes new governance structure and governing entity for the Delta, abrogating land use authorities of local entities
• Relies on doctrines of “Reasonable Use” and “Public Trust” to potentially trump existing water rights priorities
• Calls for a surcharge on upstream diversions to pay for new Delta governance mechanisms

Bay Delta Conservation Plan The Bay Delta Conservation Plan (BDCP) is a multi species habitat conservation plan with a goal of implementing broad habitat restoration and ecosystem conservation. It is made up of State and Federal agencies, environmental organizations, and water operators of numerous “Potentially Regulated Entities” (PREs) that include such water delivery agencies as U.S. Bureau of Reclamation (operation of the Central Valley Project), California Department of Water Resource (operation of the State Water Project), Metropolitan Water District, Kern County Water Agency and San Luis and Delta Mendota Water Authority. Participating PREs will be able to apply for Incidental Take Permit under the Endangered Species Act or California Endangered Species Act.

Concerns:

• Implement conservation measures upstream of Delta on a cooperative basis
• Will require the cooperation of local and out of area land use authorities and governments
• Target both aquatic and land species
• May set precedents for habitat plans for upstream areas

All these will require additional water.

Attorney General’s Letters On July 9, 2008 the Attorney General wrote to the Delta Vision Blue Ribbon Task Force in which he discussed the “Reallocation of Water under Specific Conditions”. According to the letter, the Attorney General stated that the Public Trust Doctrine and the Reasonable Use Doctrine would be the legal tools that currently exist that could be used to override the State water priority system, particularly in light of the fact that the State owns the water.

Concerns:

• Re-appropriation of historical water rights
• Revised definitions of beneficial use
• Reallocation of water based on new definition of beneficial use and the Public Trust Doctrine.

California’s Water: An LAO Primer prepared by Legislative Analyst’s Office, October 2008 The Legislative Analyst’s Office (LAO) Primer on water ( pages 68 and 69) clearly calls for the realignment of water rights based on the rationalization that current policies are out dated and “can lead to inefficient uses of water”.

The LAO report states:“It is in the interest of the state to undertake a concerted effort to realign the water rights system to better reflect modern needs and circumstances. For example, this could be done by accounting for the potential for water conservation and water use efficiency in managing water rights. Thus, where water is required for agricultural purposes, the water right should mirror only the amount of water needed to grow a crop using available water efficiency technology.

Similarly, urban water rights should reflect the use of cost-effective water conservation and efficiency measures. By realigning water conservation and efficiency efforts with water rights, overuse of water simply to maintain a water right could be reduced and that water would be available for other purposes within the region or state.

This modernization of the water rights system could start to be accomplished by the enactment of legislation to provide an updated, comprehensive definition of the “reasonable use” of water to be used in the water rights permitting process. This definition would encompass the potential for the water rights holders to avail themselves of water conservation and water use efficiency measures discussed above.”

The concern with this approach is that not only will the term “beneficial use” have to be redefined but who will redefine it? If the Legislature takes on this responsibility, the revised definition of the term will likely be influenced by large population centers that “need” the water; the result will be that areas of origin and the priority right holders will be negated and water will move from the north to the south.

Based on these and numerous other plans/programs under consideration there is only one conclusion that can be made. In order to meet all these environmental needs and the ever expanding population needs for water, it is apparent the State and Federal agencies and water entities are seriously looking for legal ways to take water from areas of surplus and move that water to areas of deficit.

All eyes are looking north.

***Special thanks to the law firm of Somach Simmons & Dunn which provided information on the foregoing issues at the firm’s Bay Delta Issues Briefing Seminar on October 30, 2008.***

Advocate warns: Watch your water rights; ‘beneficial use’ and other terms may be redefined

Posted by: Aqua Blog Maven on January 20, 2009 at 8:10 am

From the Capital Press:

An escalating competition for California’s limited water supply could cause a redefinition of water rights and a host of lawsuits, a private property rights advocate contends.

The outcomes from such environmental initiatives as Delta Vision, the Bay Delta Conservation Plan and others could also increase pressure to send more Northern California water south, asserts Susan Sutton, of Maxwell, who helped found a nonprofit organization that assists families with water rights issues.

In a newsletter essay last week, Sutton zeroed in on statements in a recent primer by the Legislative Analyst’s Office that the “reasonable use” requirement under the state’s water rights system should be updated to reflect the scarcity of resources.

“It is in the interest of the state to undertake a concerted effort to realign the water rights system to better reflect modern needs and circumstances,” reads the primer, published in October. “For example, this could be done by accounting for the potential for water conservation and water use efficiency in managing water rights.”

Sutton argues that if the legislature were to try to redefine “beneficial use,” its definition might well favor urban areas to the detriment of agriculture and other rural rights holders, particularly in the north.

“I think the net-net is it’s all going to end up in the courts,” Sutton said in an interview. “It’s all going to end up in lawsuits.

“We want to do our part” to conserve water and protect fish, she said. “But we also want to do what we can do to protect our water rights.”

Read more from the Capitol Press by clicking here.

Advocate: Watch your water rights; Nonprofit founder warns ‘beneficial use,’ other terms could be redefined

Posted by: Aqua Blog Maven on December 25, 2008 at 8:25 am

From the Capital Press:

An escalating competition for California’s limited water supply could cause a redefinition of water rights and a host of lawsuits, a private property rights advocate contends.

The outcomes from such environmental initiatives as Delta Vision, the Bay Delta Conservation Plan and others could also increase pressure to send more Northern California water south, asserts Susan Sutton, of Maxwell, who helped found a nonprofit organization that assists families with water rights issues.

In a newsletter essay last week, Sutton zeroed in on statements in a recent primer by the Legislative Analyst’s Office that the “reasonable use” requirement under the state’s water rights system should be updated to reflect the scarcity of resources. “It is in the interest of the state to undertake a concerted effort to realign the water rights system to better reflect modern needs and circumstances,” reads the primer, published in October. “For example, this could be done by accounting for the potential for water conservation and water use efficiency in managing water rights.”

Sutton argues that if the legislature were to try to redefine “beneficial use,” its definition might well favor urban areas to the detriment of agriculture and other rural rights holders, particularly in the north. “I think the net-net is it’s all going to end up in the courts,” Sutton said in an interview. “It’s all going to end up in lawsuits.

“We want to do our part” to conserve water and protect fish, she said. “But we also want to do what we can do to protect our water rights.”

Read more of this article from the Capital Press by clicking here.

Tehama supervisor looking out for the north state

Posted by: Aqua Blog Maven on December 22, 2008 at 5:52 am

From the Redding Record Searchlight:

Water, air, forestry and the Williamson Act - those are Bob Williams’ priorities as he represents rural Northern California at the state level. Williams, who is in his third year as a Tehama County supervisor, was elected this month to the executive board of the California State Association of Counties (CSAC). “I am the only supervisor north of Sacramento (on the executive committee),” Williams said. As such, he takes the responsibility seriously.

Water rights captured his attention at the annual CSAC meeting in San Diego earlier this month. “They’re talking about doing away with area of origin and going to public trust,” Williams said. “That means the water would go to where the votes are.”

He attended a workshop on the state’s water dilemma and said he was appalled by the lack of representation from the counties that would be most affected. He is trying to form a coalition with other counties, such as Siskiyou, Trinity, Glenn and Colusa, to strengthen their position and protect area-of-origin rights.

“Tehama is an agricultural county,” Williams said. “And if you don’t have water, you don’t have agriculture.”

Read more from the Record Searchlight by clicking here.

Breaking News: Auburn Dam water Rights Revoked

Posted by: Aqua Blog Maven on December 2, 2008 at 4:11 pm

From Friends of the River:

December 2, 2008 - The California State Water Board voted unanimously to revoke the Bureau of Reclamation’s water rights to build the auburn dam. The Order cited California’s tough “use it or lose it” water rights policy, in which the Water Board noted that the Bureau failed to construct the project and apply water to beneficial use with due diligence as required by state law.

More on this to follow, I’m sure …..

What if water rules change? Water users who rely on federal projects to deliver water may think they know what their rights are, but they could be wrong.

Posted by: Aqua Blog Maven on November 23, 2008 at 7:35 am

From Ag Weekly Online:

Water users who rely on federal projects to deliver water may think they know what their rights are, but they could be wrong.

Take the shareholders in the Stockton East Water District. The district is located in a part of California that has been heavily dependent on ground water since the Gold Rush days. The aquifer is in a state of critical overdraft, said Jennifer Spaletta, an attorney from California that is representing Stockton East in a court case that began when she was still in school.

In the 1970s, the Bureau of Reclamation built a dam on the Stanislaus River and created a reservoir that holds 2.4 million acre-feet of water to relieve the pressure on the aquifer. BuRec contracted with two entities to provide 155,000 acre-feet of water provided those entities built the infrastructure to get the water from the reservoir to their projects.

So Stockton East sold bonds and assessed everyone from irrigators to homeowners to raise the $65 million needed to build the 25 mile-long conveyance system that included tunneling through the mountains.

The BuRec contracts were signed in 1983, the canal system was completed in 1992, the same year Congress redirected BuRec to use 800,000 acre-feet of the yield of the reservoir for fish restoration. As soon as Stockton East finished building the canal system, it asked for 10,000 acre-feet of water and was denied.

And that raises a couple of questions: What does the law mean when contractors have contracts to receive water from a federal Bureau of Reclamation project but the federal government decides to use the water for a different purpose? If the government decides to use the water for fish restoration is that a takings, a breach of contract or a really bad deal?

Read more from the Ag Weekly Online by clicking here.

State officials move to revoke water rights for the proposed Auburn Dam

Posted by: Aqua Blog Maven on October 24, 2008 at 6:14 am

From Stockton’s Record:

The proposed Auburn dam, which San Joaquin County had long hoped would bolster its water supply, was all but dead Thursday after state water officials issued a tentative order canceling the water rights.

According to the draft order, the State Water Resources Control Board recognizes the county’s need but adds that San Joaquin County was not guaranteed water from the proposed dam on the American River.

More from Stockton’s Record by clicking here.

The Sacramento Bee adds this:

Water rights associated with an Auburn dam enable the Bureau of Reclamation to store a staggering amount of water - 5 million acre-feet - at different times of the year. But since the project was halted by earthquake concerns in 1976, the federal government has failed to proceed with construction on any new version of the dam, as required by the terms of its water rights.

“In fact,” the order states, “the only construction that Reclamation has performed relative to the project was to restore north fork American River flows to the former dam site by sealing a bypass tunnel necessary for project construction.”

Once removed from federal hands, the water rights could become available to others.

Read more from the Sacramento Bee by clicking here.

Time to stand up for water rights and the right to farm

Posted by: Aqua Blog Maven on October 11, 2008 at 7:52 am

From the Western Farm Press:

If you’ve never written or called your state legislators, it’s time to let them know you oppose the Pacific Institute’s “More With Less” report. CAFA and other organizations have been on the offensive since the report was released on Sept. 9. “More With Less” stands for more regulations, an erosion of water rights, less water, and less freedom to make crop selections. The report claims growers can grow more with less water and should shift to “high value” tree and vegetable crops.

The Institute wants courts and regulators to “apply California’s water-rights laws more rationally to ensure water is being used reasonably and beneficially.” Another recommendation: “Redesigning misguided federal and state subsidies that encourage wasteful use of water.”

The report (available at www.pacinst.org) is a blueprint for the Sacramento/San Joaquin Delta, but it should concern all regions in California. If implemented, it would set a dangerous precedent. CAFA’s letter below, sent to the California Department of Food & Agriculture, provides key points to use when writing or e-mailing state legislators.

[start of letter]The California Alfalfa & Forage Association, a statewide organization, is in agreement with the California Farm Bureau and other groups that oppose the Pacific Institute’s “More With Less” report released on Sept. 9. Alfalfa was falsely singled out by the Institute in May, and its report again demonstrates that it understands neither agriculture nor market dynamics. If implemented, their recommendations would disrupt markets, cause severe hardships and have a negative impact on the environment.

Read the rest of the letter from the California Alfalfa & Forage Association by clicking here.

Amador County plan intended to head off statewide battle over water

Posted by: Aqua Blog Maven on September 17, 2008 at 6:43 am

From the Amador Ledger Dispatch:

There are drums of war beating all over the state of California and residents of the Sierra Foothill counties will soon be hearing their ominous sound. The battle is over water. As a precaution, the Amador Water Agency is breaking out a new weapon - purple pipe.

Standing before a screen displaying the agency’s latest map, AWA engineering and planning manager Gene Mancebo presented the board of directors with the Purple Pipe Plan at its meeting Thursday morning. The plan is to create a water system that will convey recycled water through purple pipes. “The agency’s objective,” said AWA general manager Jim Abercrombie, “is to maximize our water supply.”

Mancebo added, “We have to build a portfolio of water supply.”

Additional water rights may be available if the agency can provide evidence that recycled water is replacing a significant quantity of its treated water. The goal, according to Abercrombie, is production and use of nearly 3 million gallons per day of recycled water, which would free up 3,000 acre feet of untreated water.

The article also discusses Amador County’s pre-1914 water rights in depth. Read more from the Amador Ledger-Dispatch by clicking here.

Water rights discussed at Bay Area Delta Vision meeting

Posted by: Aqua Blog Maven on August 22, 2008 at 5:33 am

From the Village Green, a SF Chronicle blog, a post written by reporter Kelly Zito, who attended the recent Delta Vision meeting in Oakland. Water rights were part of the discussion. It’s not just about the Delta, the task force said, but also about a system built around 150 year old thinking:

Specifically, panel members have discussed the idea of rejiggering the state’s complicated and controversial system of water rights.

Put simply, state laws “provide the highest priority to the earliest water users,” according to the state Water Resource Board. Also known as the “Doctrine of Prior Appropriation”, or “first in time, first in right” (Whew. The law/policy portion of this entry is nearly over). That means that if you landed here during the Gold Rush and starting drawing water from a local stream, you’re water rights are pretty solid, and you’re more likely than others to receive your full water allotment.

However, the task force is wondering whether that model fits the water needs of 21st century California. According to a recent task force report, research shows “the state… has substantial ability to reallocate water when necessary to prevent unreasonable use, achieve water quality, protect the public trust, avoid public nuisance and respond to emergency situations.”

For those water wonks who have hung with me this far, that’s kind of a big deal. Water rights in California are considered sacred and untouchable. If you want to start a big water fight, bring up the word “reallocation” to a Central Valley farmer whose rights date back 100 years.

Big changes and big waves appear to be ahead.

Read the full text from the Village Green by clicking here.

Northern California counties file lawsuit against DWR to receive full SWP allocation under ‘area of origin’ rights

Posted by: Aqua Blog Maven on August 21, 2008 at 7:59 am

From the Weekly Calistogan:

The Napa County Flood Control and Water Conservation District is among those challenging DWR in Sacramento County Superior Court. At stake are state supplies that Napa Valley cities depend on for half their water. While Calistoga gets about half its water supply from the state, American Canyon depends on the State Water Project for nearly all of its supplies.

Earlier this year the state cut State Water Project deliveries by 65 percent, citing drought conditions that left Sierra Nevada reservoirs below normal.

If the suit is successful, DWR would have to give Napa County and the other plaintiffs 100 percent of their allocation every year, drought or no drought.

The plaintiffs — Napa County, Butte County, Solano County Water Agency and Yuba City — argue that they are entitled to full allocations under the terms of the 1963 contracts that launched the State Water Project.

The project, the largest of its kind in the nation, supplies more than four million acre feet annually to Bay Area, Central Valley and Southern California water districts.

The plaintiffs, who receive two percent of this amount, say their 1963 contracts exempt them from dry-year cutbacks because they contribute water to the Sacramento River Delta, from which the State Water Project draws its supplies.

From the Solano-Napa Times Herald:

The “area of origin” refers to land north of the Delta, said David Okita, Solano Water Agency general manager.

The DWR and the Napa and Solano agencies differ on how to interpret the original contracts agencies have securing their state water supplies.

The four agencies maintain the contracts protect them from water cuts during shortages. One reason they are immune is that their jurisdictions lie within areas where the water originates, according to the lawsuit. The other 25 agencies with state water contracts only have rights to surplus water and have to bear bigger reductions during dry spells, Okita said.

The lawsuit allegations were bolstered by a recent court decision siding with the agencies with “area of origin” rights, he said.

DWR information officer Don Strickland said its lawyers are studying the lawsuit. He said the state is not ready to make an official response.

The contract dispute has been brewing for a while, Strickland added. “They can’t understand why they can’t get a full allotment and say, ‘We come from the part of the country the water comes from,’ ” he said. “They want their full allotment.”

Napa County’s water situation this year is not dire, but things could worsen should the state hold back more water in 2009, Riesenberg said. This year, Napa cities are relying more on local reservoirs and other supplies, he said.

Solano users also are not in bad shape, mainly because the county has plenty of water stored in Lake Berryessa, Okita said. “We are in better shape than most folks, but we should be getting 100 percent of our state water supplies instead of 35 percent,” Okita said.

An editorial in the Napa Register sees water wars on the horizon, as trouble is brewing:

The pressure on the Delta comes from many sides: Municipal users, agricultural users, fish and wildlife and their advocates among humans, problems caused by toxic runoff. In addition, the health of San Francisco and San Pablo bays are largely dependent on the health of the Delta.

Lawsuits between government agencies over complex issues like water allocations have a tendency to drag on forever. It is our hope that the Department of Water Resources sees the importance — and minimal harm — of upping the supply to the affected agencies and eases the pressure without marathon litigation.

But when the lawsuit is over, it’s a sure bet that California’s water wars will still be raging.

The Weekly Calistogan article references a press release. I have looked all over, and I cannot find one online. If someone knows where I can find it, please let me know!

Delta overhaul can’t undercut northern rights, says editorial

Posted by: Aqua Blog Maven on August 16, 2008 at 8:28 am

From Redding’s Record Searchlight, this editorial:

Will the governor’s push to fix the water disaster in the Sacramento-San Joaquin Delta cause a new disaster up north?

That’s the warning of a letter the Shasta County supervisors will weigh sending to the Delta Vision Blue Ribbon Task Force — the group appointed to figure out how to fix the rickety plumbing that keeps two-thirds of Californians in drinking water.

“We understand the critical need to … save the collapsing ecosystem of the Delta, but we fear that decisions affecting water rights in our region will lead to a Delta-like catastrophe,” reads the letter, which the supervisors will discuss Tuesday.

What’s the trouble? The Delta Vision strategic plan, released in June, puts too much emphasis on centralized management of water at the expense of local control. And it casts the discussion of water use in terms of “public trust” while playing down historic water rights and the area-of-origin rights of the north state.

Read more of this editorial from Redding’s Record Searchlight by clicking here.

Metropolitan’s & Westland’s purchase of Yolo bypass lands has some worried

Posted by: Aqua Blog Maven on August 3, 2008 at 12:24 pm

From the Sacramento Bee:

Southern California’s biggest water agencies are putting down roots in the Yolo Bypass. The Metropolitan Water District of Southern California and Westlands Water District are buying land and jointly planning restoration projects in the bypass to protect their access to water from the Sacramento-San Joaquin Delta, officials told The Bee.

The agencies are the two largest diverters of Delta water, contributing to the decline of threatened Delta smelt and other fish. A related disruption of the Delta’s food chain has prompted fears that an ecosystem collapse is under way, which could affect water quality for millions. The water agencies hope to protect their diversions by creating more habitat for fish to thrive.

This new interest has local residents worried. They fear the water titans have other motives, such as draining groundwater from the area or somehow seizing Sacramento River water rights. “The purchase of land by out-of-county water districts makes us nervous,” said Yolo County Supervisor Mike McGowan. “Until we see some real legitimate response from these entities being willing to work with us, we’ll continue to be paranoid about it.”

Read the full text of this article from the Sacramento Bee by clicking here.

New reports available on economic efficiency of water use & allocation, tribal communication, and financing Delta improvements and environmental mitigation

Posted by: Aqua Blog Maven on July 31, 2008 at 6:53 am

From the California Water Plan E-news:

Economic efficiency of water development & allocation:
A paper recently submitted to the Delta Vision Blue Ribbon Task Force examines the economic efficiency of water use and allocation in California. It was written by economist Roger Mann. The paper identifies key issues related to the economic efficiency of water development, allocation and use in California and discusses general policy changes that might improve economic efficiency. Click here to read the report.

Tribal Communication Plan:
A Tribal Communication Plan has been posted on the Water Plan Web site. It is intended to help everyone involved in the California Water Plan – including the Department of Water Resources and all
other state and federal agencies – to communicate appropriately and effectively with all California Native American Tribes about water issues that may affect them in their territories and ancestral
homelands. Click here to read the report.

And from my own wanderings, this report from the California Research Bureau, commissioned by the Delta Vision Task Force titled “Financing Delta Improvements and Environmental Mitigation”:

Resolution of the Delta’s water supply, water quality, and fish problems may involve
building various structures, possibly including gates, pumps, canals, levees, and dams, and undertaking landscaping rearrangements to improve habitat for several species of flora and fauna. Resolution also involves changing water flow regimes in ways that would make more or less water, but probably less, available for human uses. This work and these changes will cost serious money. Cost estimates for many of these actions have not yet been developed. This paper explores approaches to financing these “improvements” and “mitigations.” While a little abstract, this is abstraction that matters. It will determine from whose pockets a good deal of money will come.

California has a long history of financing water projects. The first section of this paper reviews this history, in hopes of identifying water-financing principles that might be adapted to Delta improvements and mitigation. Some deep-seated controversies about how Delta improvements should be financed have roots in this history, and it may be helpful to point them out.

A core idea in California’s approach to financing water projects is that beneficiaries should pay for them. Decades ago, this was a straightforward proposition – people or water districts should pay for the necessary dams, canals, and pumps and the costs of operating them in proportion to the amount of water they received. In the current age of rising environmental sensitivity, it is a little muddier. An alternative formulation that applies, at least crudely, to housing developments and highway projects, is that project proponents should pay to mitigate at least some of the environmental harm that their project is likely to cause. The second section of this paper explores this controversial subject. It seems unlikely that any consensus can be reached about how to finance facilities in the Delta without reaching some agreement about how to deal with this matter.

Read the full text of this report by clicking here.

Promised San Joaquin County water source springs a leak; Auburn Dam water rights get a hearing

Posted by: Aqua Blog Maven on July 22, 2008 at 9:25 pm

From Stockton’s Record:

An ever-thirstier San Joaquin County has been told for more than half a century to take a drink from the American River, where the federal government planned a new dam to capture and store snowmelt. But the Auburn Dam, the long-awaited source of surface water that our area needed, never happened.

Now the state, in a final blow, may kill the federal government’s rights to take any more water from the river. That water was to be shared with three counties, including San Joaquin. The dam and canal to send the water south were never finished.

Local officials testified Monday that they still need the water and asked that the water rights be preserved a few more years. “This has long been promised to the county by the state and federal government, and it’s a commitment that should be honored,” Mel Lytle, water resources coordinator for the county, told the State Water Resources Control Board.

Auburn Dam, started in 1972, was delayed three years later after an earthquake. Then the cost soared above what Congress was willing to pay.

Much has changed since the dam was first proposed. The Delta has deteriorated. Environmentalists say the state has promised more water than can be delivered.

Stockton environmentalist Bill Jennings told the board he was 26 years old, weighed 150 pounds and had “flaming red hair” when the Auburn Dam water rights were issued. Today his beard is a snowy white. “This morning, my shower diverted more water” than has been put to use in all those years, he said.

“The Auburn Dam project is dead,” Jennings said. “The corpse needs to be buried.”

Not necessarily so, say others, and for different reasons. Read more from Stockton’s Record by clicking here.

Even without a dam, San Joaquin County could contract with the federal government to take American River water from another location - perhaps Freeport on the Sacramento River, where local officials are already pursuing water through a separate process.

“The county is not proposing to build Auburn Dam,” attorney DeeAnne Gillick said at Monday’s hearing.

Rather, local officials asked for about three years to negotiate a water contract with the Bureau of Reclamation and find a way to get the water on their own.

Water rights fight won’t end soon; Rancher won ruling against Forest Service, but appeal is likely

Posted by: Aqua Blog Maven on July 21, 2008 at 5:51 am

From the Las Vegas Review-Journal:

It took 17 years for the late rancher Wayne Hage to win a lawsuit against the U.S. Forest Service in a long-running dispute over property rights, water rights and grazing on federal land. A federal judge finally ruled last month that the government had engaged in an unconstitutional “taking” of Hage’s water rights and awarded more than $4 million to Hage’s estate. His family and supporters, while relishing the victory, fear the fight is far from won.

“What happened to us in the 1980s and 1990s is now happening across the West, so it is going to be vitally important for Western ranchers to understand what they own and how to defend it,” said Ramona Morrison, one of Hage’s daughters. A member of the Nevada State Agriculture Board, she was a freshman in high school when the dispute began.

“We could have a classic case here in some sense of laws working at cross purposes,” said Ed Monnig, U.S. Forest Service supervisor of the Humboldt-Toiyable National Forest where Hage once grazed his cattle in central Nevada.

Federal Claims Court Judge Loren Smith, based in Washington D.C., ruled that government restrictions severely reducing water flows to the Hage family’s land “deprived them of the water they needed for irrigation, making the ranch unviable.”

Like judges before him, Smith said the cancellation of Hage’s grazing permit as a result of overgrazing and trespassing did not constitute a “taking” prohibited under the Fifth Amendment to the Constitution, because a grazing permit is “a license, not a contract or property interest,” he said. But he concluded the government committed a taking when the Forest Service, apparently motivated by “hostility” toward Hage, made it impossible for him to maintain irrigation ditches.

“It doesn’t do you a lot of good to own that water if you really, effectively can’t use it,” said Lyman Bedford, a San Francisco-based lawyer who has argued the case since Hage filed a lawsuit against the U.S. Forest Service in 1991.

Read the rest of this story from the Las Vegas Review-Journal by clicking here.

Water plan to protect Delta: State Water Resources Board proposes self makeover

Posted by: Aqua Blog Maven on June 30, 2008 at 7:19 am

Hoping to streamline their work and improve enforcement, the State Water Resources board has proposed it’s own reorganization plan, which has two parts: legislation to overhaul its structure and duties, and a strategic plan to regulate San Francisco Bay and the Sacramento-San Joaquin Delta. More details from the Sacramento Bee:

The proposal for legislation comes in the form of a “water quality improvement initiative” that could become a rider on a forthcoming state budget bill. It builds on a water quality bill by Senate Majority Leader Don Perata, SB 1176, that is now stalled.

The proposal would reduce the size of the regional boards from nine to seven members to minimize chronic vacancies. Each chairman would become a full-time, paid position to improve accountability and expertise.

It would streamline the now-cumbersome process to adopt water pollution limits by bringing California’s system into accord with federal procedures.

To improve enforcement, the boards would be freed of issuing written notices before penalizing polluters, and a requirement to hold a public hearing before referring such cases to the attorney general would be abolished. City attorneys and district attorneys in large cities would gain the power to seek civil penalties against polluters if requested by the water board. Only the attorney general has this power now.

The second prong of the overhaul package is the “Bay-Delta strategic work plan.” It proposes an aggressive regulatory agenda to improve water quality and habitat in the largest estuary on the west coast of the Americas. The plan is scheduled to be presented to the state board Tuesday in Sacramento and could be adopted as soon as July 16.

It proposes an ambitious schedule to review existing water rights within and upstream of the Delta to ensure diverters are following the law. This includes the complex diversion rules governing the State Water Project and the federal Central Valley Project, which deliver Delta water to 25 million Californians. The plan would evaluate the need for more fish screens on these diversions and whether in-stream flows are adequate to provide quality fish habitat.

The board also would develop a strategy to achieve the governor’s call for a 20 percent reduction in per capita water consumption by 2020. This could impose new mandates on local water agencies. The plan would take up to five years to carry out.

Both proposals can be viewed on the water board’s Web site, www.swrcb.ca.gov.

Read more from the Sacramento Bee by clicking here.

Water rights transfer deal in Washington stirs up concerns in rural communities

Posted by: Aqua Blog Maven on June 22, 2008 at 4:40 pm

From the Associated Press:

Ray Colbert wanted out after five decades of growing apples, but his son didn’t want the farm in northern Washington. No one else did either. So, Colbert sold the last big piece of his operation, an 80-acre parcel, to a buyer far downstate who wanted what came with the land: water from the Okanogan River.

State regulators signed off on the buyer’s request to transfer the rights to the water and let it flow hundreds of miles down river, figuring the deal was good for fish and wouldn’t hurt anyone else’s water supply. Local officials, however, fear such deals will dry out their rural farming community. “If this were to snowball and keep up, Okanogan County would literally dry up. It would dry up its economy, its agricultural production and everything else,” said state Sen. Bob Morton, a Republican whose rural district sprawls across remote northern Washington.

Moving water around the West is nothing new — it’s what enabled apples to sprout in this area in the first place. In Northern California, river water is diverted south to irrigate most of the country’s winter vegetables and keep faucets flowing in the Los Angeles area. Officials in northwest Montana are negotiating a water compact with the Blackfeet Indian Reservation that would allow the tribe to sell water from the headwaters of the Missouri River to any place in the vast swath of the state that lies in the river’s basin.

“There’s no constraint where they can market that water to — hundreds and hundreds of miles,” said John Tubbs, administrator of the Montana Department of Natural Resources water resources division.

Such moves don’t come without dispute. Ranchers and conservationists are fighting a plan to pump billions of gallons of water from rural Nevada and send it to Las Vegas. More fights are likely as farmers find they get a bigger payoff from selling their water than by growing crops, since Western water law allows water rights to be separated from land.

For Colbert, the decision wasn’t difficult. “The Okanogan Valley’s a great place to live. I love it, but it’s a tough place to make a living,” Colbert said. “I’m so relieved to basically be out of these big orchards.”

He shares the concerns of local officials but also says his water right is his to do with as he pleases. “It’s a property, like a truck or a cow, and you should have the right to do as you wish with it,” he said.

Read more from the Associated Press by clicking here.

Nevada rancher awarded $4.2 million; Forest Service took his water rights, judge says

Posted by: Aqua Blog Maven on June 11, 2008 at 5:50 am

From the Los Angeles Times:

A federal judge has awarded more than $4.2 million to the estate of late Nevada rancher and private property rights advocate Wayne Hage, ruling that the U.S. Forest Service committed a constitutional “taking” of his water rights during a decades-long dispute over livestock grazing on federal land. Calling the conflict a “drama worthy of a tragic opera and heroic characters,” U.S. Court of Federal Claims Judge Loren A. Smith also ordered the government to pay back interest to the family of one of the leaders of the so-called “Sagebrush Rebellion” during the 1980s.

Hage’s lawyer estimates the interest dating to 1991 to be an additional $4.4 million, which he said would make it the largest award ever in such a case. “It sends a pretty important message to the government that if you screw with a small ranching family and put them out of business, you have to pay big bucks,” said Lyman “Ladd” Bedford, a San Francisco-based lawyer who has argued the case since Hage first filed a lawsuit against the Forest Service in 1991.

Smith, based in Washington D.C., ruled that government restrictions severely reducing water flows to Hage’s land “deprived them of the water they needed for irrigation, making the ranch unviable.” “The court finds the government’s actions had a severe economic impact on plaintiffs and the governments’ actions rose to the level of a taking,” he said in Friday’s ruling. “Whereas real property ownership is defined by a right to exclude others from that property, water ownership is defined by the right to access and use that water.”

Like in similar cases in the past, the judge said the cancellation of Hage’s federal grazing permit as a result of overgrazing and trespassing did not in itself amount to a “taking” prohibited under the Fifth Amendment to the Constitution. That’s because a grazing permit is “a license, not a contract or property interest,” he said. However, Smith said the taking occurred when the Forest Service — apparently motivated by “hostility” toward Hage — made it impossible for him to maintain the irrigation ditches.

Read the rest of this story from the Los Angeles Times by clicking here.

A quest for water: Whose water is it? Utah rancher tests the system by leasing unused water allocation

Posted by: Aqua Blog Maven on June 1, 2008 at 6:28 am

From the Salt Lake Tribune:

In Tim Vetere’s dreams, the Fremont River water flows upstream to grow melons, hay and cattle on a ranch that stretches across thousands of acres of good farmland in east central Utah’s section of the Colorado River Basin. His wish seems to have come true, at least on paper. State Engineer Jerry Olds, seeing Wayne County perilously close to the deadline for putting its 50,000 acre-feet per year of Colorado River to use, last year approved Vetere’s request for one of the largest water-right transfers in recent state history.

The rancher’s quest for water comes at a time when water needs increasingly are clashing with reality: The state has doled out 180,000 rights to tap rivers and dig wells, but there’s just not enough water to honor them all.

Vetere now can draw on the Green River - about 60 miles upstream from where the right exists - for Wayne County’s Fremont River allocation and may irrigate more than 16,000 acres across three counties. And Olds, willing to get creative to solve some of Utah’s most vexing water problems, reckons the rancher’s plan might set an example for how Utah can keep its share of Colorado River water at a time when big downstream states are facing shortages.

The Colorado River Basin has been closed to new large allocations in the decade Vetere has been trying to secure his own water rights. That’s why Olds pointed Vetere to Utah rural water agencies that have yet to “prove up” their Colorado River water rights by putting them to beneficial use. Maybe, he told Vetere, someone would sell some rights or work out some other deal.

Vetere approached Wayne County, where water managers agreed to allow the third-generation rancher to lease its right to the Fremont River. In turn, said Bliss Brinkerhoff, a member of the county water conservancy district board, Vetere will get to keep 15,000 to 20,000 acre-feet for his own if he can show he is putting the water to good use.

Olds made sure the state would get something out of it, too - new understanding of never-tapped resources, which under the law belong to all Utahns. “As state engineer, I want to see Utah use this water,” Olds said. “What we’re doing is giving [Vetere] a hunting permit to go see if there are in fact elephants down there, and if there are, he can shoot one.”

But if or when Wayne County tries to get the water back, as Brinkerhoff says may happen, it will depend on whether the water managers can show they need it. If they can’t, “then there’s an issue,” Olds said.

Read more on this extensive article from the Salt Lake Tribune by clicking here.

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