Matt Jenkins, April 11, 2010 (SF Chronicle)
On a crisp, brilliant day at the end of March, the farms near the Sacramento Valley town of Arbuckle were bursting with green and looked as if they’d popped straight off a fruit-crate label. A few wet clouds hung over the Coast Range, and Doug Griffin kept a wary eye on them, hoping they would bring more water.
“If you’re not going to get it through the rain and the good Lord,” said Griffin, a 53-year-old almond grower, “then you’re gonna buy it from the U.S. Bureau of Reclamation.”
Lately, though, even the federal government hasn’t been able to make up for what the heavens have failed to provide. For the past two years, Griffin and farmers in 17 Sacramento Valley irrigation districts have received only 40 percent of the amount of water they hold contracts for with the federal government. With California’s water supplies squeezed by drought, farmers saw their supplies cut as the state and federal governments pumped Sacramento River water to farmers in the San Joaquin Valley, south of the delta where the Sacramento and San Joaquin rivers meet.
To cover their shortfall, the farmers served by the Tehama-Colusa Canal Authority have spent roughly $9 million over the past two years to buy water from growers with better rights; some farmers had to idle their land.
“Without water, we don’t have much to work with,” Griffin said. “We literally went from being the Maytag water district to the district from hell.”
This February, after several fruitless rounds of arguing for more water, the Tehama-Colusa Canal Authority sued the Bureau of Reclamation to restore its full deliveries. The authority’s legal challenge relies on an obscure provision in state law known as the area-of-origin protections, which say that no water project can deprive an area “wherein water originates” of water “reasonably required to adequately supply” that area. But the farmers’ fight for water from the federal government is, in fact, a symptom of a much larger problem, the cause of which lies largely with the state. A year and a half ago, California’s primary water-rights regulator, the State Water Resources Control Board, released a report showing that it has parceled out rights to far more water in the Central Valley than actually exists. The amount for which farmers, cities and other users hold rights – colloquially known as “paper water” – is a whopping 8.4 times the valley’s average natural streamflow.
How it came to be that way stems from a mix of miscalculation, unrealized dreams – and a hefty dose of calculated risk-taking. Water planners decades ago believed there was more water in the state’s rivers than there actually is. But the state also issued rights to water it intended to siphon from the “wild rivers,” such as the Smith and the Eel, along the north coast. Since the passage of the Wild and Scenic Rivers Act in 1972, that water has been off-limits.
More controversially, the state board has a constitutional mandate to ensure that “the water resources of the State be put to beneficial use to the fullest extent of which they are capable.” By overbooking water, the state has been able to ensure that every last available drop is put to work. Yet in times of drought, that overextension creates a lot of losers, in both the Sacramento and the San Joaquin valleys.
The current drought, compounded by water restrictions to protect endangered species, is pitting farmers against each other. “We’re certainly sympathetic to their needs down south,” Griffin said, referring to farmers in the San Joaquin Valley, many of whose water deliveries have been drastically cut back in the past two years, as well. “But we need to be made whole.” Tom Howard is the chief deputy director of the Water Resources Control Board, and he said the 8.4 paper-to-wet-water ratio is grossly misleading. “It’s not an accurate number,” he said. “But people grab onto that and say, ‘My God, look what a problem we’ve created.’ ”
Yet even those who say the number is wildly inaccurate have failed to offer a more precise alternative. To be sure, at least half the paper water is double-counted: Hydroelectric dams require a water right, but they don’t actually consume any of the water they use. Moreover, many water users don’t use the full amount of water for which they hold permits.
Beyond that, though, the number is more difficult to parse. “Comparing face value and (actual) use is just bogus,” said Andy Sawyer, the state board’s assistant chief counsel. “But once you get through those exaggerated, phony numbers, it is true that streams are overcommitted.” Still, Sawyer said, water cutbacks are part of the bargain that more recent, “junior” users made to get water rights. “If you take the position that people should be allowed to use water when it’s there, you have to accept the consequence that people are going to have to cut back when it’s not,” he said. “The promise to deliver water doesn’t include a promise to make it rain.”
Late last month, a grower named Steve Dennis rolled his Ford alongside the Tehama-Colusa Canal. About 180 miles to the south, across the delta, lay the Westlands Water District, the most powerful farming stronghold in the San Joaquin Valley. Last year, Westlands received only 10 percent of its contracted water, and the district’s manager, Tom Birmingham, has been tirelessly fighting for more.
Dennis didn’t relish the notion, but he recognized that he and his neighbors soon might be squared off in court against Birmingham. Still, he said, “he doesn’t blame us for doing what we’re doing. He would do the same thing.”
As it happened, Birmingham has spent two weeks hunkered down in a federal courtroom in Fresno, arguing another case that seeks water for the farmers in his district. “Everyone is looking to challenge anything right now, because there’s a limited supply for everyone,” said Westlands spokeswoman Sarah Woolf. “Everyone is concerned about, ‘Are we going to get to next year?’ ”
But back alongside the canal, Dennis seemed to think the fight is as much about the clash of water needs over the long term as it is about making it through this year. “We’re just trying to get our share of what is left,” he said. “We have to protect ourselves, because if we don’t, they’re gonna take it. It’s that simple.” Local sources for local needs
In the early 1900s, Los Angeles water boss William Mulholland quietly bought up ranches and water rights in the Owens Valley and then “dewatered” the area by siphoning its water 223 miles to Southern California. The incident so haunted the collective California psyche that in the 1930s, the Legislature passed what has become known as the area-of-origin statute – essentially a guarantee that any area’s reasonable need for its own water will be met before water can be exported elsewhere.
That proviso proved crucial to persuading farmers in the Sacramento Valley to sign on to plans for the Central Valley Project, which taps water from the Sacramento River in large part for farms in the San Joaquin Valley. “The promise was, ‘Your local resources will go to meet your local needs before we export water,’ ” said Jeff Sutton, the general manager of the Tehama-Colusa Canal Authority. Now, after back-to-back years when Sacramento Valley farmers received just 40 percent of their water contracts while water was pumped south, Sutton said, “that promise is not being kept.”
Over three-quarters of a century, California has received enough water that the area-of-origin protections have for the most part languished on the books. “For years, it was kind of a dead letter,” said Joseph Sax, a professor emeritus of the UC Berkeley School of Law and one of the leading minds of California water law. “The only time people thought about them was in law school classes.”
The suit has the potential to reduce water deliveries to farms in the San Joaquin Valley, but it could ultimately threaten an ever bigger shakeup of California water. The Metropolitan Water District of Southern California, which supplies 19 million people in Los Angeles and San Diego, now gets about 60 percent of its water from areas in the northern half of the state that could be protected by the statute.