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.
1My minor objection to his op-ed is that flood irrigation isn’t inherently unreasonable. It can be managed well. It is cheap and flexible. People are talking about using alfalfa fields to recharge groundwater in the winter; those fields would need to be on border strips to move big amounts of water into the ground.
2I suggest a different use for the Reasonable Use Doctrine, which is to whittle away at the takings problem. If ag uses over 3.5af/acreyear are preemptively declared ‘unreasonable’, then nothing is taken when the right is converted to 3.5af/acreyear from a right that had allowed more water.
On the public record 
Why not allocate 3.5af*4.5million acres to existing rights holders (senior to junior) without regard for location (assuming rights are “for the system”) and let them use/trade/etc? There’s no good reason to attach rights to land, crops or people.
I have three reasons for that:
To follow the soils,
To consolidate the farmland, farm towns, and re-naturalizing lands,
To sensibly consolidate/abandon infrastructure.
As it happens, the best soils were farmed first, so a lot of the old rights would be favored. But being consolidated is cheaper and we won’t be able to afford patchwork distributed agriculture.
Attaching rights to people makes sense because:
Realistically, we do that anyway, as emergency measures to haul water to people show. So the right would reflect the de facto situation.
It would let cities accommodate growth. It solves this problem: http://droughtmath.com/2015/07/31/l-a-city-prodded-to-grow-without-sufficient-water/
Since I want to protect a (much smaller) ag sector, I don’t want water traded away from ag, even if it could earn more money elsewhere. I want the water we choose to apply to farming to be used for farming or remain in the river.
“Now, water rights have a “use it or lose it’ feature that requires continuous use.”
I could point to water rights that go many years without being used. How often does the State actually cancel an appropriative right? Seems very rare.
Well, a lot of our current water rights system has held together by never being enforced. We are finding out right now what happens when we try to use them the way they are supposed to be used.