Monthly Archives: October 2016

Good luck, SGMA!

Since June 2015, growers have planted 77,000 new acres of almonds and 27,000 acres of re-plants.  That’s more than 300,000 af/year of water demand every year for the next couple decades.  Growers made that choice in 2015, in Drought Year 5, in full knowledge of SGMA.


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Why instream flows should be law, not voluntary agreements.

Instream flows for Californian rivers should be State Water Resources Control Board decisions with the force of law rather than voluntary agreements for several reasons.  For this post, let’s posit that voluntary agreements would work as well to bring back salmon.  Even were that true, I list below several reasons the State Water Resources Control Board should still continue with their Draft Flow Objectives process and set instream flows as State law.

My top reasons:

  1.  To (eventually) reduce conflict by reducing uncertainty.  As it stands, our cobbled together water rights system contains enough unresolved questions that most parties can put together a plausible argument for continuing to fight.  The earliest water districts can argue that they pre-date the SWRCB so the SWRCB has no regulatory authority over their water use.  There are unused codes and doctrines to protect fish, and we don’t know how strong those are.  Even if the Resources Agency can cobble together voluntary agreements that can do what instream flows would do, those would leave the contradictory and unsolved legal questions about water rights in place.  Answering those questions will take conflict in the short term.  But getting clear answers will reduce conflict in the long term.
  2. People who want a water market should support these instream flow requirements. One of the risks of a water market is that it becomes a super-efficient siphon of water out of the environment. With instream flows protected, water markets would only be buying and selling the water that humans would be using as an economic commodity.  Legal instream flows are a foundational part of the structure for a water market.  They would greatly simplify a programmatic EIR for water transfers as well.
  3. Enforcement of State Board decisions would be more straightforward for instream flows than for a statewide hodgepodge of voluntary agreements.  Further, I don’t understand what remedies are available for failure to meet “voluntary agreements.”  Fines?  To whom? Targeted how?  Cease and Desist orders?  Personal civil charges?  What happens when a restoration project with every good intention runs five years behind and the species becomes that much more precarious?  How is that resolved, and how should the State agency pursue and enforce it?  How should a State agency follow up on multiple similar situations, with multiple local partners each with slightly different agreements and authorities?  Instream flows would be more readily monitored and enforced.
  4. It is their job.  The State Water Resources has a legal duty to regulate the waters of the state and a moral duty to follow the science where it leads.  Anything besides following the best available science on questions that are essentially biological is arbitrary.



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Side thoughts on why instream flow requirements should be law, not voluntary agreements.

Note: in this post, I am not positing that voluntary agreements would be as successful as instream flow requirements.

  • I welcome a court fight over instream flow requirements.  It is time to do this.  Why have F&G §5937, the Public Trust doctrine and the Reasonable Use doctrine if we never use them or if we use them after the fish are extinct?  If they are no good, let’s find that out.  They are equally no good if they are never used.

II.  This is exactly the role that the State should play.  Decisions of this sort will necessarily feel ‘unbalanced’ within the regions that have gotten used to using 80% of the flow of the river.  But it is right and proper for the State to balance the preferences of the entire state, including the 38 million people in other regions who want our salmon runs to continue to exist.  No one regional entity can take that perspective, and they are too close to their electorate to make a sacrifice like that even if they wanted to.  It requires authorities at the State level to see the statewide picture.

c.  I hope we are seeing the pendulum swing back from the State’s emphasis on “regional management”.  That always looked more like an abrogation of responsibility than a governing philosophy to me.

4.  I was pretty bummed about this letter from Gov. Brown.  I attribute it to a sense of urgency on advancing the tunnels before his administration ends.  But his single-minded focus on the tunnels has been a real shame.  It made his water policies risk-averse.  I believe he could have advanced water management in the state far more if his agencies hadn’t been absorbed by the tunnels.  Now I have to wonder whether the progress that the State Board made wasn’t because of Gov. Brown, but despite him.  (To my eye, the only thing he really viscerally cared about was turf removal.  We made a great deal of progress on turf removal.)

Anyway, we should hear back about whatever ‘voluntary agreements’ the Resources Agency was able to find in the near term.  That’ll be interesting.


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Do not use analogies.

Analogies are the very devil; always more harmful to the conversation than a clear enunciation of the issue itself.   When offered an analogy in an important conversation, I suggest that you refuse to engage with it and ask instead for a direct statement of the issue.  That said, I am seeing a common theme in ag responses to the instream flow requirements that sounds like this:

Adding more flow to the rivers isn’t giving us more fish.  The enviros are pursuing a hackneyed, mindless approach of always wanting more water, more water, when we have been adding more water and there aren’t even any more fish.

I am now seeing a new variant of:

“More water” is old science.  The new science says make sure there’s food and nesting opportunities for the fish.

(I bet the enviros wish they had some sort of word for a landscape with enough food and nesting opportunities for fish, and that they had some way to study this new concept.)

Despite my distaste for analogies, I am going to present one now.  My usual rule of thumb is that a crop takes about 3ft of water to finish a season.  Let’s say we have a very hot year and we care about salt flushing.  For our analogy, lets use a crop water requirement of 40acre-inches/acre-year.

% Flow on the San Joaquin River

Analogous irrigation amount    (acre-inches/acre-season)

Current conditions 20 8in
Potential low end of State Board instream requirement 30 12
Current State Board target for instream requirement 40 16
Potential high end of State Board instream requirement 50 20
What enviros hoped for 60 24
What science says is necessary 80 32
The full river, no diversions 100 40

With that as our reference, I would enjoy conversations like this:

GROWER: We are only getting 8 inches of water this summer!  We need more to grow crops!

OTPR:  It probably isn’t a water issue.  Have you thought about the fertilizer your crops need?   It might be that, and your single-minded focus on water has blinded you to the fertilizer issue.

GROWER:  No, seriously.  If you want crops, we’re going to need more than 8 inches of water.

OTPR:  Have you looked into predation?  Maybe rabbits are eating your crop.   That’s probably it.

GROWER:  We are going to need at least 32 inches, and really 40 inches to have healthy crops that do well year after year.

OTPR:  Honestly, this focus on water is all-consuming with you.  We’re going to need an all-of-the-above approach that honors both of the co-equal goals.

GROWER:  Yes!  We can look at the nutrients and we can control predation.  Yes, we will do that.  But fundamentally, crops require 36-40 inches water if you want to get something to eat when you’re done.

OTPR:  You keep bringing up the water, water, water.  This unhealthy focus has got to be hiding some ulterior motive, probably because you are hiding a huge water grab.  If you understood that we’re really nice, you wouldn’t want to take all our water.

GROWER:  What if you gave us 16 inches, but maybe 20 inches, and we do our best to grow the minimum crops that are most important to everyone?

OTPR:  SIXTEEN INCHES!  That’ll destroy civilization itself!  Holding out the possibility of 20 inches is extortion!  You need to go back to the drawing board and look at the fertilizer and rabbits again.  What is it going to take to get over this one-size-fits-all approach?



I am being petty, but not actually more petty than the op-eds and comments I read.  Biological systems require the water that they require.  Up until that threshold, the yields are small and unsustainable.

I am thrilled that the State Board is starting the public process of setting instream flows.  Those are the basis for healthy rivers and fisheries, possibly a backstop for water markets, and the start of a water rights regime that reflects the actual amount of water in California.  They are long overdue.  Great work, State Board.


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