Monthly Archives: April 2009

California Water Rights and Flexibility

I’m intrigued that both defenses of our current water rights system emphasize how flexible our water rights system is.

Public Water Coalition:
“The hallmark of California water rights is flexibility.” …

“With a resource as variable as water, some flexibility in rights is by design. Appropriative water rights account for this flexibility because their holders can modify them as long as other legal users of water are not injured. This basic rule has supported a robust and growing water transfer market.”

Ms. Moon’s testimony:
“With a resource as variable as water, and with constantly changing land use patterns, some flexibility in the administration of the rights is needed and has been designed into the system. For example, appropriative water rights provide this flexibility by allowing their holders to modify the ways they are exercised (place of use, point of diversion, purpose of use) as long as other legal users of water or the environment are not injured.”

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. For example, a flexible rights system might be like the markets in Portugal, where buyers purchase a daily allotment of agricultural water from centralized sellers. That system allows for daily choice of whether, how much, and when to receive water without reporting it, risk of losing a right or violating its terms. That would be flexibility.2

I’m trying to figure out why the big boys are suddenly emphasizing the flexibility in what is actually an arcane, tangled, brittle and constrained water rights system. Two theories. First, in two of the few ways that it is flexible, it lets them move and sell water3. This is, of course, extremely valuable to members of the Public Water Coalition, who are either players with big old water rights or cities who want to get water any way they can. But you do not need our particular water rights system to achieve an economically efficient allocation of water throughout the state. Other water rights systems could also achieve that4, if that were the goal.

I have another theory about why the Public Water Coalition is talking up flexibility, one that veers wildly into speculation, overthinking and strategery. I wonder if they aren’t laying the groundwork for a legislative change to water rights law to help them with climate change.

Berkeley professor Michael Hanemann has been pointing out the need for an overhaul of our water rights system at conferences. One of his most interesting points is that appropriative rights often include dates or seasons of diversion, April to October, for example. Here’s the interesting part. Remember how climate change means that the snowpack arrives as rain and melts faster? The bulk of water will be in rivers earlier in the year. In fact, it may flow past water districts before they are allowed to divert and store it according to the dates of use in their appropriative rights. Prof. Hanemann says this will make enough appropriative rights worth so much less water that the legislature will have to address the problem wholesale.

I am probably assigning undue cleverness to whomever decided to emphasize flexibility, but I wonder if part of the goal was to get legislators thinking ‘Whatever, man. Water rights are, like, totally flexible and shit. Dates of diversion? Let’s move ‘em. April? March? February? Whatever! They’re flexible.  We’re flexible.  It is all flexible, man.” I’m real hesitant about assigning complex levels of strategizing to any group, mostly because I don’t think anyone thinks that far ahead in the real world. But with so much at stake, perhaps someone at the PWC is setting the stage for future legislative conquest. I’M ON TO YOU, SHADOWY MASTERMIND! I have exposed your plot ON MY BLOG!!!


California’s current water rights system?  Not actually flexible.

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California’s Current Water Rights and Investment

“Communities throughout California have invested billions of dollars in reliance on their water rights or water-supply contracts issued under others’ water rights.”

Both defenses of California’s current water rights system point to the investment that water agencies have made based on their water rights. I’m interpreting that to mean that they’ve put billions of dollars into their physical delivery systems1. I assume that the implication is that “because they know they have guaranteed water, districts are willing to develop their capital.” This is true, up to a point. There comes a point, though, where having very good water rights means that districts do not invest much in their physical capital.

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.

My other point is that for virtually all of the state, our investment in physical delivery systems would not vaporize if the water rights system were changed. The pipes would still be there; people on the other ends would still need water. What Los Angeles has invested in the LA Aqueduct will still give huge returns to the city whether the City of Los Angeles held the water rights, or if each person in Los Angeles had a birthright of water, or if Martians held the water rights and sold water to Los Angeles every day. The systems that districts invested in will still exist, and they will still serve roughly the same populations who paid for them, because they will still connect the same reservoir and cities or fields. The value of the investment doesn’t depend on the nature of the water right, it depends on whether that water is used in the same place in the real world.

Our current water rights system does not optimize investment well. It forces some regions to start paying for expensive high entropy sources while allowing others to remain severely underdeveloped.

Changing the water rights system does not necessarily de-value the investments we have already made. The fact that most water use would remain means that the value of those physical structures would persist.

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Brief description of California’s current water rights system.

A summary of California’s water rights system. The two major kinds of rights are riparian and appropriative. Riparian rights are for people who own property adjacent to a river; they can use river water to irrigate adjoining property. If the river is low, all riparian users are supposed to cut their water use proportionally. Appropriative rights can be used away from the river and are ‘first in time, first in right’. If there is a cutback, junior rights holders get none while senior rights holders get their full allotment. An appropriative right technically has a place and method of diversion, a maximum flow and maybe also a maximum volume for a year, and may have start and end dates of allowed diversion. There are a few other types of rights, but for the most part, appropriative rights allocate the most water in a system that was pieced together over a century.

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Two defenses of our current water rights system

I am genuinely grateful to the Public Water Coalition for writing up a defense of our current water rights system (II(f) pgs 12-13). I’ll be looking at both that section and to three paragraphs from Ms. Moon’s testimony to the Little Hoover Commission, which also defended the current water rights system (page 3). They touch on some of the same points, so I will refer to both of them. I’ve long wondered how people could defend our current water rights system, so I am glad to have two sincere defenses to address. I also hope these are the two strongest cases that could be made for California’s water rights system. I am copying both in full beneath the fold, in case you don’t want to click through to pdf’s elsewhere.

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Good things in the Public Water Coalition position paper.

I should say some things I liked about the Public Water Coalition paper, most of which can be found in their introduction and core principles. (Sadly, when they develop the themes in later sections, they walk them back somewhat, or apply them to the Delta but not themselves.)

Still, they show a real solid grasp of climate change and understand that now is the time to plan and adapt for it. The section on conveyance concedes that fixing the Delta ecosystem is a prerequisite for moving water. Water agencies haven’t always shown such concern. The section on water conservation takes it very seriously, emphasizing the ties between conservation and improved supply reliability. I’ve already said that I love the idea of a real time monitoring system for diversions, and I’d love to have that tied to water rights enforcement. Section (g) introduces the idea of halting illegal diversions in the Delta. That would be a great start, although I can’t see why that should be limited to the Delta.

Something new and promising shows up a couple times in the position paper, where they say that land use agencies have to get involved. This is painfully true, but hasn’t been said much by powerful people. I’m very intrigued that large water agencies have brought it up. (Of course they have brought it up for the Delta and not themselves, but this is the post where I encourage themes I like to see.)

Overall, if this is the new water buffalo dogma, it is a very pragmatic approach, conceding to the realities that Californians want a healthy environment, or at least they are standing behind our environmental laws. I think the reality that the next big source of water is going to be efficiency gains has hit home. In this paper, they don’t dispute climate change. They are dealing with these constraints, which is much better than refusing to admit that they’re real. They call for the enforcement of water rights, which is a decent second place to fixing them. This is a realistic approach (easier for them to apply to the water users in the Delta who are not in the Public Water Coalition), and one that opens a lot of space for environmentalists to work with them. So that’s good.

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The Public Water Coalition position paper and money.

You guys are all savvy and interested and no doubt some of you know more about the field of water than I do. I’m going to have to trust you, because showing how every recommendation in this paper reinforces the water agencies who are already powerful takes some background. Worse, it is repetitive and boring, because the message is always the same, “we keep our water or you give us money.” Sometimes they keep their water and we give them money.

So here’s how the paper goes. They write a section, and say some things I like to hear in the discussion paragraphs, very, very carefully qualified. Then, the recommendations are secret code for “give us money.”


Section II (a): They write nice things about IRWM. IRWM means Integrated Regional Water Management, and tries to get all the water agencies, suppliers, wastewater treatment, counties, cities in a region involved in coordinating and managing their supplies. It is THE concept in water for the past several years, and there is about a billion dollars worth of bond money devoted to it. The Public Water Coalition position paper encourages this. The main critique of IRWM is that it gives money to the big boys, largely because those are the agencies with the capacity to attend coordinating meetings and hire consultants to write technical grant applications. It is hard for small agencies or stewardship groups to stay involved in IRWM meetings. Encouraging IRWM ends up encouraging a lot of money for the big players.

Section II (d): They say water conservation is important to them, improves their reliability, and then the recommendations are familiar.

3. beneficiary pays (not us, ‘cause we won’t do it for ourselves)

4. create incentives for us to conserve (incentives = $)

5. conserve so that we can transfer water (for money)

6. we keep it, so we can transfer it for money

Urban 2: Provide technical assistance ( = $) for water conservation

Ag 2: Same as Urban 2.

Section II (f): I’ll be discussing the water rights section at great length, but the summary is that the Public Water Coalition wants to protect their water rights and be compensated for any change in them.

Section II (i): They suggest that we give money to rural community water systems. (They are (sorta) right on this one.)

Two of their solution principles are that:

Fees or charges on water use will only be supported where they will benefit the fee payer, for example by increasing water supplies or reliability, or improving water quality. Those who pay must have an appropriate degree of participation in the decisions pertaining to the use of those funds. Such fees would be expected to vary to reflect impacts and benefits in specific regions.

Public funding should support actions of general statewide environmental benefit.

This is ultimately a little silly. The water agencies who are fiending for all this taxpayer money say they represent 25 million Californians. That’s nearly two-thirds. They have ratesetting and (some of them) taxation authorities. They can raise this money themselves if they want, and they are talking about most of the same populations. If the state gives them technical assistance, the only difference is that 13 million people that aren’t represented by the Public Water Coalition are (partially) subsidizing the 25 million water users who are. I can’t see how it makes sense for Sierras, Imperial, Santa Rosa, very northern Cal and the Delta to subsidize the whole.

Besides looking at the flow of subsidies, I don’t know how to interpret the Public Water Coalitions’ requests for money. It is more palatable to the member agencies of the PWC if someone else is the yucky tax collector? They think the state is a miracle of efficiency and should collect and hand back the money to them? Basically, if the Public Water Coalition is as big as they say, “give us money” is a strange concept.

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Big versus little.

Here it is again, more evidence of the new big v. little alignment in water politics.  From the State Water Contractors (very big), in testimony about water governance (pg 4):

Therefore, SWC makes the following recommendations regarding the role and activity of the SWRCB in its oversight of water rights:

1. To protect other beneficial users of water and the environment, the SWRCB should commence hearings to establish a diversion amounts and schedules for in-Delta water users within the CDWA and SDWA based upon water rights, hydrology and water legally available for diversion in the Delta after meeting the Bay-Delta Basin Plan objectives.

2. The SWRCB staffing should immediately be expanded to enable it to identify and halt all illegal diversions.

“[O]ther beneficial users of water and the environment” means Los Angeles and farmers in the San Joaquin. If salmon have to live in order to turn the pumps on, then it means (begrudgingly) salmon too.

“Halt all illegal diversions” means YOUR DAYS ARE NUMBERED, quainte asparagus farmers in the Delta.

I’m all in favor of cracking down on small diverters. My friend talks about standing in a stream and trying to figure out whether the incoming water is a tributary stream or run-off for overirrigated pasture. The little guys get careless, because precise water diversion and application cost more money than a small operation can afford*. Even if they only lower instream flows for a few hundred feet before the water comes back, the smaller warmer river can still strand and kill fish.

I like the recommendation fine, but I am still surprised by this new split in water users and the division in the ag community.   I wonder if the little guys have caught on yet or if they still think there is solidarity in ag.



Thanks to Aquafornia for a great job compiling these stories.


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