– Tim Stroshane, policy analyst, Restore the Delta
Last Wednesday, December 15, staff of the State Water Resources Control Board (Water Board) hosted an online workshop to address “possible alternatives to address water supply shortages in the Delta watershed.” As many Delta Flows readers are aware, “water supply shortages” are dealt with through a system of privileges embedded in water rights—property in water. Rights to divert, store, and use water in California (as in most western U.S. states) are predicated on “first come, first served.” So, the workshop addressed how to make California’s water rights priority system more fair.
First, a few definitions about this water rights system, so readers can follow the rest of this blog more easily. California recognizes both appropriative and riparian rights to use water. Riparian rights (“riparians”) are tied to land owned adjacent to rivers and streams. (Most Delta island diverters assert riparian rights, the legal basis by which they irrigate their island farms and fields, as do landowners adjacent to rivers.)
Appropriative right holders (“appropriators”) may legally take water that is surplus to needs of riparians and do so based on “priority”—the historical order or sequence in which they first claimed such surplus flows from a river or stream. To maintain their rights, appropriators must diligently construct their facilities and fully use the water they claimed; otherwise their right can be challenged and reduced or lost through disuse. Riparians retain their rights through land ownership along riverbank frontage. Appropriators may build dams and canals to store and transport the water they take; riparians are entitled to use water proportionate to their riverbank frontage they own, generally no more than that, and they must return unused water to the river.
But in California, riparian rights come first before appropriators; they are considered paramount, though they are smaller in number and water volume claimed than appropriators.
Riparians have an important ecological role: their rights help ensure water actually flows in the river to meet all the human riparians’ needs, and these flows provide additional water to underground aquifers which sustain natural riparian vegetation corridors and their associated wildlife. These same aquifers store water below for later use during droughts. And these in-stream flows are important to ecosystem restoration and recovery projects.
Appropriative rights based on priority are inherently inequitable, accidents of history (luck) converted to immutable privileges for a few early arrivals and burdens for others arriving late. When enforced, as through the Water Board’s “curtailment” process, the priority system forces “junior” appropriators to reduce their use—even to zero—before those with more “senior” rights need to. If we as a society are truly “all in this together,” the distinction of junior from senior privileges undermines a modern economy—including California’s agricultural economy—in an era of climate change, vast income disparities, and racial hierarchy.
Such a water-privilege system sharply contrasts with how we all benefit from electric power access. In that industry, electric utilities are mandated by the state to serve power to all who want and need it; utility regulators mandate subsidies available for households with low incomes. Why should modern, but “junior,” farmers and ranchers, and their communities along the western side of the Sacramento Valley get little to no water at a time when those along the Sacramento and Feather rivers get much of what they are accustomed? Why self-inflict water wounds on some parts of the state just because someone’s third or fourth great-grandparent got to California’s awesome rivers first and now has a senior water right dated 1883? It is arbitrary privilege now enshrined in law from priority then.
Water Board staff held the workshop because they were directed by appointed Board members to “engage with stakeholders” and look into “a curtailment methodology similar to the standard water right Term 91,” which the Board applies to 115 licenses and permits dated 1965 or later, according to the workshop notice, out of thousands more preceding them.
Term 91 states that these junior appropriators may not divert at times when the California State Water Project (SWP) and the federal Central Valley Project (CVP) haven’t enough water to satisfy “in-basin entitlements.” These were defined in the 1980s (in Water Rights Decision 1594) to include Delta water quality flow protections provided by releases from the SWP and CVP reservoirs.
Workshop participants maintained that extending Term 91 back further in time is a good idea, just don’t try to curtail the rights of senior appropriators. Their water heritage comes closest in time to California’s original sins as a state, and they would benefit the most from maintaining the status quo.
In recent curtailment years, the Water Board has moved the trigger date back a few decades to free up more flows for “in-basin” uses, excluding Delta exports. With seven years of drought in the last nine, the Water Board at least recognizes that curtailed diversions of the 115 juniors are not enough to address present and future droughts. Staff appears to look further back in the pecking order to capture more flows from senior appropriators.
According to the Water Board’s staff report for the workshop, the settlement contractors normally divert their own water using “underlying” appropriative water rights when rivers are flush. But when drought strikes, they can’t divert so their state and federal contracts require the California Department of Water Resources (DWR) and the US Bureau of Reclamation to deliver their privileged flows from SWP and CVP reservoirs using DWR and Bureau water rights. The Board seeks a method so that senior appropriators’ drought deliveries are accurately accounted. (See page 7 of the staff report.)
Such tinkering by the Water Board has seniors nervous, but nothing was resolved last week. Board staff will take written public comments about this issue into mid-January 2022, at [email protected].
The Water Board has not allowed its November 16th racial equity resolution to intrude its scope into water rights. The Board solemnly stated that values of racial equity, diversity, inclusion, and environmental justice are “central to our work as we implement our mission so that the access the State Water Board creates and outcomes we influence, are not determined by a person’s race and the benefits are shared equitably by all people.”
In light of the racial equity resolution, an obvious water rights alternative would be a plan to share water broadly throughout California, so that everyone shoulders more equitably in the pain of drought supply reductions while benefiting more equitably in the good years. This is the toughest nut to crack: a truly equitable solution to California’s water rights misallocations would go against nearly 175 years of legal precedents and white supremacy.
While all California landowners, businesses, and urban home owners have benefitted economically as a result of the lands and water taken from California Indian Tribes, senior appropriators—like the Sacramento River Settlement Contractors, the Feather River Settlement Contractors (served by the State Water Project as the Joint Water Districts and Western Canal Water District), the San Joaquin River Exchange Contractors, and the Stanislaus River Settlement Contractors (Oakdale Irrigation District and South San Joaquin Irrigation District)—embody this weight of state history. While none of us come to the table with clean hands in California in regard to what was done to California tribes, these water contractors all benefited early on from dispossession and genocide of California Indians throughout the Central Valley and other parts of California, and their present exemptions from meaningful water reductions during times of extreme drought result in too little water remaining in rivers to sustain fisheries and resources for California Indians in the present. Restore the Delta commented on their privileges last summer when these folks got plenty of water to irrigate and in the Sacramento Valley the salmon runs were way short of needed flows. We maintain that all parties in the state must make sacrifices to save and restore salmon runs for the healing of California Indians. (There are also ways for urban dwellers to help with restitution funds for our California Tribal neighbors.)
California Indians have called the lands of California home (if not “California”) since time immemorial. Our system of water privileges derive from a genocidal campaign to remove Indians from the landscape, extinguishing their direct access to water from the most abundant rivers and streams. Today’s priority system ignores and erases this stain on the past and obstructs equitable allocation and distribution of water resource control.
By merely tinkering with Term 91 and accounting procedures, the Water Board is sidestepping its racial equity resolution with silence on the role of racial equity in California drought management.
The Board resolution itself rightly condemns racism, bigotry, and white supremacy. It centers environmental justice as central to its work. It reaffirms the human right to water law. It reaffirms their commitment to protecting public health and beneficial uses of water bodies in all communities and goes into detail about how, and to expand implementation of the Board’s 2017 climate change resolution to “address the disproportionate impacts of extreme hydrologic conditions and sea-level rise” on communities of color and Indigenous communities.
It promises the Water Boards will improve communication, working relationships, and “co-management practices” with all California Native American Tribes, in recognition of their (the Board’s and Tribes’) “parallel relationship to the people we serve and values tribes’ traditional ecological knowledge and historical experience with managing California’s water resources since time immemorial.”
Just don’t touch the senior water right holders’ water. The phrase “water rights” appears just once in the resolution’s “resolved” section, offering only to incorporate water rights administration into its “racial equity action plan.” There are no legislative initiatives on water rights needed to reduce community and inter-regional disparities resulting from long-term drought. (See #11 of the resolution.) On water rights, the Board’s resolution is weak tea. All Californians deserve better for rivers and communities, not just the senior appropriators.