On the public record

I have been watching the water field for decades.  I attend meetings and read accounts of other meetings.  I read policy recommendations until I am nearly numb to them.  I cannot summon any more interest in the intriguing in the Delta, for example.  Based on exposure to lots of ways to consider water and a willingness to trust my own assessments, I have slowly kludged together a mostly-consistent philosophy.  I may or may not have convinced some readers, and maybe there’s more agreement for parts of it than I know (although I suspect that pieces get cherry-picked to support other advocacy, which is perfectly fine).  Until yesterday, I had never seen my philosophy expressed elsewhere.  Yesterday, out of nowhere, I found a blog-popular author who isn’t on the water circuit.  S/he has assessed the situation exactly the way I have, for the same reasons.  I felt such relief reading the three water posts.  I keep reading people whom I know to be bright come to wrong different conclusions than the ones I’ve drawn.  I didn’t know how much I wanted to hear someone else say the things I say for the same reasons.

The pieces are long, give more water background than my readers need, and ramble a bit. I don’t know if you want to read them all.  But I want to highlight the things s/he says that I found deeply resonant.

From the March 18th post, which is even titled Climate Change, the “Free Market” & the California Drought:

The political problem is not an absence of power, but an unwillingness to use it. Right now the list of options is constrained to “free market” solutions only — limited to only those solutions that our wealth-captured government will consider –

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I predict, as the crisis worsens for more and more people — impoverishing and destroying life after life — the press for solutions will reach flood levels.

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It’s only a matter then of what solutions will be considered. When people stop letting the rich say, “Well, we can’t throw money at it,” we’ll be on our way to solving this. We can throw money at it, the money of the wealthy first –

Yes to all of those.  I am astonished by how strong this administration’s voice has been for markets.  I thought Governor Brown’s Jesuit training would help him evaluate other ways to allocate water besides economic efficiency, but it hasn’t been the case.  Not one appointed-level person has yet said anything besides “the market should dictate our choices.  We can’t make choices different from The Market.”

Quibble with the second point.  Yes, the drought is damaging lives, but those are mostly the lives of poor people and we don’t generally care about that.  I don’t think the drought has to actually destroy lives of urban Californians before they demand change.  They just have to get tired of carrying warm-up water out to their plants and have an initiative to vote on.

I have been making the point that money and water can be fungible.  If we want farms to maintain their capacity through droughts and be there in the next normal year, we could just give farmworkers and farmers cash to get by during drought years.  Money can gather and clean the next source of water for you (wastewater, stormwater, brackish water, sea water), the source of water that was too annoying to pay for when snow and rivers delivered clean water in one place.  I would love to spend the money of the wealthy on those things.

Here is an April 8th post, titled How Growers Are Gaming the California Drought.

I actually found the analysis of growers gaming the drought the least interesting part of Publius’ work on water.  We’ve gone over it a couple times, recently and back when it was that Levine dude at AlterNet pointing out how the Resnicks captured California water policy.  But I loved the analysis that starts with the header Will the “Free” Market or Government Control Water Allocation.  I’ll bring over some of the good parts:

This is a tricky question, since government always has control.  The question really is, will government surrender control to the billionaires and other capitalists — the “free” market — or take control in the name of the people … actual people?

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You’ll hunt in vain for a Forbes mention of the social good, or the most good for the most people. Yet “properly priced water” is seen as the solution, including in an indirect way ..

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The Forbes writer asks, in effect, “How else do we allocate water?” Answer: In the old fashioned way — by government telling people what to do. Yes, this is “picking winners and losers,” but government will pick losers anyway if it picks the “free” (billionaire-controlled) market and hands the answer to those who will pick themselves as the only winners. There’s a “free” market for labor. Do you feel free? When there’s a “free” (properly priced) market for water, will you feel fairly treated, relative to, say, Stewart Resnick, the billionaire grower from the quote at the top?

It is possible the first question may be at issue in the next couple years.  If we do design a water market, what controls can be put on it to prevent large-scale monopolization.  Intra-basin transfers only?  Make people pay to participate in the market and reallocate those funds to the poorest participants?  Re-design the market from scratch every fifty years, so at least problems won’t go uncorrected for longer than that?

That next paragraph reminds me of my frequent plea for a priority besides the implicit “economic efficiency”.  Gaius Publius offers a rough “most good for the most people.”  I think more along the lines of “nice to live in, day-to-day.”  That is what I want us to choose and pay for, partially with water and partially with money.

The final paragraph is a reminder that choosing a water market (unless very carefully designed) is choosing that currently wealthy people will be the winners.  Some advocates who haven’t thought through what a “water market” would result in think that they can avoid the choice of winners and losers.  If we want a particular group to be the winners of water rights reform, we’d do better to use law to give them water.

The third piece on water, June 17th, is called California Drought, the “Bigger Water Crisis” & the Consumer Economy.

Frankly, you can scroll past the first half, because the first half is about the Colorado River and I have long since filtered out any readers who care about the Colorado.  Scroll down until you get to this picture:

Source: http://www.copenhagendiagnosis.com/

Gaius Publius writes “With climate, things are never as good as cautious people say they are.”  Publius is talking about attributing drought to climate change, but that same reasoning is why I estimate that three million acres of irrigated ag will go out of production.  The sensible experts are saying one million, but I have never seen a climate change prediction be underestimated.  So I’m overcorrecting on the high side and in fifty years we’ll know who was right.

Then Publius writes something that I had never seen expressed so plainly:

If We Try to Have Both “Growth” and Climate Solutions, We’ll Have Neither

The meme of the wealthy is that (a) climate proposals are a threat to “growth” — by which they mean literally GDP, but also by implication they mean “your big-screen, smart-phone lifestyle.” And (b) losing “growth” is a line no consumer will want to cross; not the rich, not the poor, no one. …

In response, climate solution advocates counter with an argument that says, in effect, “But wait … we’ve got a way to keep ‘growth’ and also fix the climate problem.” To which I say, “Not a good answer” …Saying “we can have (consumer) growth and a climate solution” is only true … if it’s actually true. What if it’s not true at all? Then what’s the solution on offer? (Hint: There is none.)

Exactly. We are entering a climate that provides much less wealth.  Modifying our infrastructure to be comfortable in that climate will cost additional money.  Adaptation is not going to involve growth.  Smart adaptation will mean managed retreat.  No adaptation will mean even more retreat and more pain in the process.  We start from a rich baseline and are using water in some real dumb ways, so there can be comfort and enjoyment of water for Californians for a long ways to come.  But I don’t believe in any solutions that propose both growth and managing water resources in the climate we enter now.

Here’s a news story showing some infrastructure in Fresno county that is sinking, cracking and breaking because farmers are overdrafting groundwater.  The interesting part comes at 1:48, where the reporter says:

The price tag for just replacing this one small bridge is about two and a half million dollars.  Much of the burden for fixing it will fall on the taxpayers.

Cut to Mr. Son, Deputy Director at Fresno County Public Works, saying:

The bridge itself is our responsibility.  It is our responsibility to maintain and make repairs. … We could have a bridge that could be replaced for a million.  We are currently working on some bridges that cost upwards of twenty-five million.

The reporter again at 2:40 (my bold):

Subsidence is also causing problems along the California Aqueduct, roads and railroad tracks.  Fresno County hopes to get federal and state help in paying for the bridge work.  The US Geological Survey is estimating the long term damage from sinking land could cost us billions of dollars.

There is clear case law.  The farmers overdrafting groundwater are liable for the costs of fixing those bridges, roads and railroad tracks.  Fresno County Public Works shows no willingness to go after them, hoping instead that we will all pay those costs.  I wonder what it would take for Fresno County Public Works to change their stance.  What if the broken infrastructure were very squarely within the drawdown from one identifiable well?  What if there were good data that showed that the local damage is directly attributable to three local growers?  What would be a direct enough connection that Fresno County would go directly after the vandals rather than spreading their costs to us?  Maybe Fresno County can’t do it, because the defendants are also their constituents.  In that case, what about Union Pacific?  They owe no loyalty to local farmers, but Union Pacific is eating the costs of their behavior.

What is needed here?  The belief that going after growers is the right thing to do?  Clear data tying damage to specific wells?  A taxpayer revolt when the county has to raise taxes on everyone who lives there, instead of the people who broke their bridges?

Governor Brown is clearly yearning for a water legacy, something that can live up to his father’s achievements.  He’s been pushing the Peripheral Canal Tunnels as hard as he can for that purpose.  What if his real legacy is an overhaul of the water rights system to give real resilience to the Central Valley?  What if the true legacy Gov. Brown could achieve in his last term is banging on his front door, shouting his name, and he is too focused on the Tunnels to hear it?

ADDED 7/21:  It strikes me that reforming water rights might have to happen before any Delta conveyance project can go forward.  Delta conveyance can’t move forward because there is no trust.  Maybe revising the water rights system would answer enough questions (who does get water in droughts anyway; how much pumping are we talking about; when growers don’t get water, do we give them money instead; will there be Westlands or Delta farmers left; will urban voters insist on their water no matter what) that the physical solution can be resolved.  Those questions cannot be answered to stakeholders’ satisfaction under our current regime because there are too many potential interpretations of our overlaid water rights; a judge could pick any one of a range of answers.  Gov. Brown is approaching this backward.

Besides which, the Delta process is locked up.  But there is still tons of play in the water rights reform arena because so far as I’ve seen, I’m the only one rushing in.

Here you are, brain the size of a planet, and you are critiquing databases?  You have tenure and a blog, and you are spending your valuable thought on small and cautious problems?  The problem of adapting to climate change and the costs that the fucked-up new hydrology will bring are intensely real to the people of the state.  If the drought stays this intense for another couple years, there will be real transition and people will be more hurt than they are now.  We need solutions, and safe propositions about how the State should manage information are not going to help them.  If you have time to search eWRIMS for what is missing, you have time to address real problems and do some interesting new thought.  Your forte is clearly water rights regimes, so you could do good work on the next water rights structure that would make future droughts (and floods) manageable.

• If the takings issue makes water rights reform impossible, start addressing that problem.  Perhaps the value of the old water right could be traded for something else worth money (the right to grow pot legally, to sequester carbon or recharge groundwater).  Perhaps the value of the old water right could be countered by water use costs (like the cost of extinct fishing runs, or of nitrates in the groundwater, or of subsidence) and the State could come to a deal with current rights holders.  Maybe there’s something in the Public Trust Doctrine or reasonable and beneficial use that could be developed to answer the takings issue.  Maybe the new water rights structure could be a cap and trade or auction variant with the annual proceeds going towards paying off the takings cost.
• If the water rights structure must be converted to a market (despite my strong doubts that it is physically possible or socially desirable), research the regulations that keep markets from being winner-take-all for the 1% and forcing consolidation of capital.  Use rules to design a market that will be pleasant to live within for smallholders.
• When the State Board looks to you in two years, saying what should we do, show how other rights structures have worked out.  Research rights structures from other fields (oil? fish? electricity?  how come we don’t have “power rights” the same way we have water rights?) and other locations, talking about what works and what doesn’t.

At the least you could organize a conference around these themes.  But if improving eWRIMS is big proposal for you, than your thinking does not match the scale of the problem.  Fixing eWRIMS barely addresses a contemporary problem and is probably too late anyway.  Fixing eWRIMS is not thinking ahead and preparing in advance for what we should do next. You are brilliant and there is no one else as qualified.  We need more audacious thought from you.

LATER: I have edited this to shade meanings more than I ordinarily would.  I hit “publish” a little fast yesterday afternoon.  Anyway, this has been edited a bit, enough that I should be upfront about that.

A database?  You are aware of the difficulties the State Board is having using our current water rights structure to manage this drought, and your first prescription is a real good database?  You have taken a careful look at the existing database and noticed that it sucks balls.  So you propose a good water rights database instead.

I have several objections, which I list below from least indignant to most indignant:

1.  eWRIMS is the good new database.  There is no day of the week where I will call eWRIMS complete or usable, but the people that would make your good new database just did that, less than ten years ago. They came up with eWRIMS.  What factors do you think would be different between when they made eWRIMS and their new attempt now?  Unless your proposal includes new money to hire people with real database skills, you’ll get the same thing.  All the scanned important information that you think is missing from eWRIMS will be missing from the next database unless you are suggesting spending real money to get it digitized.

2.  Oh god, the State building a database?  When has that ever gone well?  There have been so many failed efforts in so many fields.  I defend bureaucrats on all sorts of things, but technology is not something the State does well.

Whatever, fine.  Decent money could overcome those things.  I have more serious objections.

3.  How would this excellent, smooth, complete new database by this January help manage the drought?  Don’t tell me “well, we can’t query important things now” or “you can’t manage what you don’t measure.”  Don’t tell me vague clichés about how information management is the first step.  Tell me exactly how the improved database would help manage the drought.  Because of the improved database, what would be different?  It is slow for people enforcing curtailments to sort through eWRIMS and get what they need to drive out to the field and enforce the curtailment, but they do it now.  How would the good database help?  The good database would help build a procedural record so that the State Board can hold better hearings before they issue more precise curtailments?  More precision on the paper end of water rights wouldn’t be equaled by more precision in the field, when you can’t tell whether a field is being irrigated by an appropriative right or the riparian right held for the same diversion point, and besides, is that project water or tailwater and we don’t know.  What, exactly, with real detail about the actual process, would the improved database provide that we don’t have now (albeit anachronistically slowly), that can be turned into actual drought management activities?  I don’t see anything that answers that question in your proposal.  What queries do you want to be able to do, for what management or enforcement purpose?  We should know that before spending time and money on digitizing a whole lot of paper.

4.  The problem with using our water rights structure to manage the drought isn’t that it takes a painful, unnecessary and anachronistic day to look up the paper records.  The problem is that many, maybe most water users do not believe that the State Board can legitimately enforce water rights.  Or they think they’ll never get caught.  Not just the senior, big water users, who sued when the State Board tried, revealing the problem that following due process for enforcing rights may take so long that it cannot be done within the diversion season.  Not just them.  When the State Board told all appropriative rights holders to confirm that they had curtailed their diversions after getting a notice, less than a third even answered.

Data show less than a third of the farmers, water districts and communities responded to the broadest conservation order for those with nearly ironclad water rights by the State Water Resources Control Board.

They wouldn’t even mail back a form saying, ‘sure, I’ve already done that. The stream was dried up anyway.’  If we get the database up to date and make it nice to use and growers don’t know their precise diversions and won’t send in the information, what good current information would go in the good database?

5.  Our water rights structure is showing itself to be unworkable.  Maybe that’s why we had to go through this process this year: to show that we can’t use it to handle an increasingly variable climate.  Climate change will only make that more true.  The last thing we should do is pour more money into that money pit.  We do not make an expensive new database now, only to scrap it when we face the inevitable and reform water rights.  (Two more years, if we are on the same timeline as Australia.)

I totally agree: eWRIMS is not good.  But bad eWRIMS isn’t the central problem we face.  The proposal to improve it doesn’t spell out what management problem fixing it would solve (besides the problem that eWRIMS is demonstrably crappy). Fixing it is a diversion from the real problems with our water rights structure.