Monthly Archives: July 2015

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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Prestigious California water law professors, a word, please?

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.

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If appropriative rights cannot be used to establish curtailments at all, then what function remains?

This decision strikes me as a pyrrhic victory.  If all curtailments are equally unconstitutional, if the order of appropriative right does not determine the order that diversions must stop when there is insufficient water in the rivers, then what does an appropriative right do?  All it is good for is establishing a place in line, and here is a judge saying, nope, there’s no line anyway, the State Board can’t curtail rights in order or at all, even when it is astonishingly obvious that there is not water to satisfy all rights holders.

What does this leave?  Senior diverters suing junior diverters individually?

The entire system is a convoluted, inaccurate, unjust mess.  Now a judge is saying that the State Board can’t use it for the limited functionality it did have.  Fuck it.  Start over.

REVISED:  This is what I get for hasty blogging.  I should definitely not get a twitter account.  My still-hasty new read is that appropriative rights can still determine the order of curtailments so long as there is a hearing first.  I suppose that’s helpful, but doesn’t change the fact that this is a janky, cobbled-together system that isn’t responsive to real world conditions.  Further, fighting the State Board every step of the way when the need for drought management is so clearly evident isn’t going to endear the State Board to our current water rights system.

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Staying focused.

I read this op-ed with substantial interest.  It veers through a bunch of different issues, nearly all of them sweet, delicious blog bait.  The part about the Bureau of Reclamation mis-calculating coldwater needs because of a faulty gauge is genuinely embarrassing.  Sure would be nice to have the budget for redundant gauges and consistent on-going calibration and maintenance.  Then they baited me with the implicit assumption that growing permanent crops planted one fucking year after the end of the 2006-2009 drought, is a reasonable choice, and once the trees are in, they must be maintained at any cost.  But if I can keep my composure and walk peaceably by these two articles, I can surely do the same for the op-ed from the Merced Sun-Star.  I am the very model of restraint and dignity*.  Instead, the hook that interests me in the op-ed is the closing paragraphs:

Before tossing aside 230 years of laws, rules and court decisions, it must be recognized that small farmers are at a horrible disadvantage when competing for water against larger, more well-funded entities. It also must be recognized that the best soils frequently have the most long-standing water rights, and to divorce the water from those soils will not only ruin family farms, but result in a waste of one of the state’s great assets.

In this drought, water managers have no room for faulty equipment or faulty judgment. Don’t compound the mistake with a hasty revision of our water laws.
I am very curious.  What would not be a hasty revision of our water laws?  Legislators appointing a commission that returned recommendations after two years of study?  The State Water Resources Control Board coming up with a plan for a ten-year conversion to a new water rights system?  I know the water law professors have been pointing out flaws in the water rights system for years.  (Not least that appropriative water rights include a season of diversion, but the shift from snow to rain because of climate change may mean that there isn’t water available during the season of diversion on the water right.)  Where are they?**  This isn’t yet the time, but another year or two of drought and the talk about having water rights that actually fit our hydrology and protect wildlife is going to get a lot louder.
That would be an interesting conference, actually.  One that examined potential water rights schemes and recommended more than the usual bullshit recommendations: “well, at least keep track of what is going on now”, “you gotta do something about groundwater”, and “a market! based on existing rights”.  Would starting to work on that now mean that revision would not be “hasty” when we reach Year Six of the drought?
Also, were I Water Rights Czar, it would be important to me to pair good water rights with good soils.  The op-ed is right about that.  I would also want a structure that protects small farms.  I wouldn’t favor a rights structure that treats water as a commodity.  People just assume that’s the inevitable reform because all anyone is willing to say about water rights reform is Markets!Markets!OhGodMarkets!.  There are other options.  We should look at them carefully.

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Speaking of great work.

If David Coffin is going to keep digging into technical materials, explaining them and pointing out the policy problems, I am going to keep linking to him.  Here DroughtMath explains how “Show me the water” laws allow water districts to pretend that imaginary water in Urban Water Management Plans provide actual water for development.  That post should be an op-ed in the LA Times.

***

And then!  Brian Devine is bringing rigorous new thought to the California drought, which is great until he applies a little too much rigor to my own arguments.  Here he engages my call for a new water rights system and proposes that we develop guiding principles first, instead of jumping to favored outcomes.  I kinda agree with that, butcept that I’ve been in processes that do develop criteria or values first.  Then, I’ve noticed, they jump to favored outcomes and then check them back against the values.  I get it, about making values explicit first, but in actual practice, the step-by-step mechanics of going from values to the end product is real hand-wavy.

The value for a water rights system that Mr. Devine attributes to me is “individual allowances for each person”, which I do favor.  My top value for a water rights system is “individually pleasant to live within”.  When I hear suggestions for change, my first internal check is ‘would that be more pleasant or less pleasant in day-to-day life?’

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