Monthly Archives: July 2015

Couple quick notes:

I don’t mean to be only arguing for the new water rights system I proposed.  I’m not even that attached to my suggestion.  I would love to argue pros and cons with someone else’s proposed water rights system and be converted to support a different concept.  (No, not stupid markets based on the current water rights system.)  But so far I haven’t seen anyone else put one on the table.  Come on, brilliant writers.  No more pieces showing how our janky system came to be and why it isn’t working.  Tell us what the good new system should be.

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I am going on an unplugged vacation.  No posts until September.  All is well.  I do not expect to disappear indefinitely this time.  See you when I get back.  Have a wonderful month.

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What comes next?

This week we get a lengthy article on the problems of our water rights system and an op-ed pointing out that the Reasonable Use Doctrine is just sitting there, waiting for the State Board to ask it to come out and play.  I thought Wilson’s op-ed on the Reasonable Use Doctrine was about as strong as a mainstream participant can be while remaining mainstream.   He proposes that the State Board could decide that it isn’t reasonable to overdraft groundwater with no plans to replenish it.  I’ve suggested that it isn’t reasonable to plant permanent crops without an assured water supply for them.  He says there is real strength in the Reasonable Use Doctrine that the State Board could use to help manage water, instead of trying to work through the curtailments process of our water rights system or adjudication.

My main objection1 to using the Reasonable Use Doctrine the way Wilson proposes2 is that it could be a bridge, something that keeps our current water rights system in place but makes it work just enough to keep.  One of my arguments for overhauling the water rights system entirely is that we could give much better water rights to the water uses we want to support.

I propose that a much smaller agricultural sector (4.5 million acres in dry years, 6.5 million acres in wet years) get better water rights than they have now.  Not necessarily larger water rights.  Crops need about 3.5af/acre year to finish a crop, so that’s what they should get.  If we want resilient sustainable agriculture, we should give it the water it needs to grow food, flush salts and protect against frost.  There is no virtue in giving not-quite-enough water to finish the crop and protect the soil.  That amount, 3.5af/acre, might be more than some parcels have now, so if those parcels are within the lucky boundary, those rightsholders might get a bit more water.  But the size of the allotment is only part of a water right.  We could design other features of a water right to be better than they have now.

Now, water rights have a “use it or lose it’ feature that requires continuous use.  We could design new rights that don’t have that requirement. An ag right to 3.5af could always adhere to a parcel (within the chosen 4.5 – 6.5 million acres), such that it waits quietly when that parcel isn’t in production and can be reactivated just by putting the land back into production.  No “lose it” potential at all.  We could have a cleaner system for curtailing water rights in dry years, a system that gives water rights holders more certainty earlier in the year that they will get the full amount or nothing. Now water rights have a source, a season and a means of diversion.  If we want 4.5 – 6.5 million acres of farmed land, maybe we want ag water rights with more flexibility.  Maybe improved water rights would allow farmers to get their 3.5af/acre from whatever source is available, at any point in the year, by any means.  This would help with the problem that current water rights have a diversion season of late spring and summer, but in the new warmer climate, water is passing through earlier in spring.

The concept of having a water headright for each citizen might also be a better water right for cities.  Right now cities have rights to fixed supplies.  If their water right naturally grew with their population, it would avoid one of the problems that DroughtMath keeps pointing out. It is true that creating better kinds of water rights doesn’t create water to go with them. But apportioning water rights to less water overall and creating more flexible rights could give local agencies more reliability than they have now.

I see the Farm Bureau objecting to the possibility of water rights reform. But the winners of water rights reform could be better off under a new system.  A smaller ag sector might have more water, water reliability and flexibility, and State support. If this drought continues, we have the opportunity to choose what we want to support through climate change and design rights that do that. We should do that rather than try to patch together our current system enough to get by until it rains.

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Stray thoughts on water markets.

I am delighted for this project in China, creating seven pilot water markets.  I hope we research them very carefully all along.

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It is worth remembering that part of the motivation of the Australian water market was to drive farmers out of farming.  Or at least to make them hate leaving farming less (comforted by the money from their water right).  It worked, too.  Irrigated acreage in the Murray-Darling Basin dropped by half in their drought, and is still only back up to two-thirds the pre-drought extent.  I don’t know how comforted they felt.

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I am starting to think that many of the people who advocate water markets are on autopilot, reacting to the 90’s when farm groups felt all-powerful and there was never going to be any possibility of reforming water rights.  It isn’t that they loved markets so much, but it was the sole hope of getting some water out of big boys in ag for cities.  If the big boys in ag made a killing selling cities water, well, that was a shame but it was the only possible way to move the water.  That dynamic doesn’t feel as strong any more.  Cities aren’t as urgent about getting more; they’ll look to their own sources (wastewater, greywater, desal) first to avoid the hassle.  Or we aren’t looking to move chunks of water around so much as facing the possibility of having much less water.  There’s much less water, but other mechanisms besides markets for leaving some instream (like the ESA).  Or the drought is raising questions of reforming the water rights system directly, rather than leaving them in place and moving water by markets.

Water market advocates!  If you haven’t revisited your reasons for thinking of markets as good policy for a few years, now would be a good time to double check them.  A water market may no longer be your best policy option.

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How so, Lester Snow?

At Water Deeply, Lester Snow writes:

Nonetheless, California must create a real and transparent water market that enables transfers between willing sellers and buyers. This is absolutely essential to the state achieving the necessary resilience to withstand long periods of drought.

This is assertion and nothing more.  Here is a way the state can achieve the necessary resilience to withstand long periods of drought with no market.

We could assign three kinds of water rights: instream flows, a headright for every person and a farmed acreage right.

There could be three levels for dry, average and wet years.  Each person could get 40 gppd in dry years and 60 gppd in wet years.  We could designate a core 4.5 million acres to get 3.5af/year in dry years and extend that to 6.5 million acres that get 3.5af/year in wet years.  If there is water available after demands for instream flows, urban headrights, and irrigated acreage are met, it could be auctioned.

On May 15th, we have Snowpack Day! and figure out what year we are in.  We ban permanent crops in basins with declining groundwater levels.  Once groundwater levels stabilize, permanent crops can be planted again.  In all years, we give support/money/tax credits to farmers that grow a variety of crops, mentor new farmers, market crops nearby before marketing them to further locales.

This is flexible and resilient.  It adapts year-by-year.  It provides for basic needs of Californians.  It might generate money in wet years.  It doesn’t create false expectations of water that get capitalized into land costs.

Contrast that with what we are seeing now, in a janky-ass broke-down water rights system with some water marketing overlaid.  We see a brittle system of overinvestment in tree nuts, made possible by unsustainable emergency purchases of very expensive water.  We see land boom-and-bust cycles, and a crash coming soon.  We see farmers taking on unmanageable costs to keep farming. We see the already wealthy becoming much wealthy and the already poor living even harder.  The little water market that exists (because moving water is very difficult) only amplifies the brittle traits.

The solution isn’t EVEN MOAR MARKET.  If resilience is the goal, the solution is to design a system that builds resilience with the resources we will have.

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Someone who thinks about climate change and markets the way I do (1 of 3).

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 –

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.

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.

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Someone who thinks about climate change and markets the way I do (2 of 3).

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?

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 ..

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.

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Someone who thinks about climate change and markets the way I do (3 of 3).

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:

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.

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Groundwater overdrafters should pay for the infrastructure they are breaking.

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?

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Definitely do high speed rail, though.

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.

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Prestigious California water law professors, you are trifling.

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.

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