Kate Poole, Senior Attorney, San Francisco

The Los Angeles Daily News penned a noteworthy editorial recently titled “California is drowning in ancient and unfair water rules.” It’s noteworthy because the editorial correctly debunks some of the common myths about California’s water system and, in doing so, points the way to several needed reforms:

  • Myth 1 – urban southern California is the biggest water hog in the state.

Wrong. As the editorial points out, “farming accounts for more than 80 percent of the state’s water usage, while providing less than 5 percent of its gross domestic product.” This is not to say that farming is not important – it certainly is. But because farmers laid claim to a huge amount of California’s water rights in the 19th and early 20th century, the State’s first-in-time, first-in-right system means that they continue to control a vast majority of the state’s water supply, even though agriculture is a far smaller piece of the State’s economic pie than it once was.  Meanwhile, many urban southern California water agencies have impressive plans to be highly efficient in their use and reuse of their piece of the remaining 20 percent.  When will we demand that agriculture be as efficient with this scarce resource?

  • Myth 2 – all farmers are careful stewards of scarce water supplies.

Water is unquestionably a commodity in great demand and short supply in California. Those laws of supply and demand are supposed to lead to an efficient allocation of resources. But not when the price in certain quarters is kept artificially low so that there is no incentive to use water wisely.

That’s what happens in large swaths of our agricultural sector where, as the editorial points out, “water costs a tiny fraction of what the state’s residential and commercial users pay.” The resulting “economic reality drives wasteful and even unsustainable agricultural practices, like flooding fields for rice cultivation in a state whose urban population constantly is hectored about water conservation.”

  • Myth 3 – there’s nothing that we can do to bring fairness and equity to the water system.

The Daily News notes that “we’re a different state than we were in the mid-1800s. Water regulations need to reflect that reality.” In fact, the current regulatory system provides some tools to bring fairness and equity back into our water system – we just need to use them.

First, the underpinning of California water law – so important that it is written into the state constitution – is that all water be used reasonably and beneficially, without waste. The State Water Resources Control Board should set standards for what it means to waste water in today’s day and age, and hold everybody to that heightened standard.  iPhones bear little resemblance to the telegraph of the 1800s – why should our water rights be determined by irrigation practices and water uses that were prevalent 150 years ago? Those practices have modernized and our rules need to reflect it.

Second, the U.S. Bureau of Reclamation and Department of Water Resources need to reform water contracts for water deliveries from the massive Central Valley Project and State Water Project. Those contracts authorize many millions of acre-feet of water deliveries annually, often at bargain-basement prices to entities that turn around and sell the water for a profit. Reforming these contracts is vitally important to bringing California’s water system into the 21st century.

Rice fields in the Sacramento Valley.  Photo credit:  Katie Lee at beeinformed.org

NRDC has an ongoing court challenge to the Bureau’s renewal of many of these contracts for 25 and 40-year periods, on terms that have been largely unchanged since the 1960s. One set of 40-year contracts that we’ve asked the courts to examine are the Sacramento River Settlement Contracts that allow for the diversion of 2.2 million acre-feet annually, most of which is used to grow rice. These contractors get their water for pennies on the dollar. Not long ago, one of these growers was quoted in a local paper saying that paying $9.03 for an acre foot of CVP contract water was “prohibitively expensive,” as that same district was selling three days-worth of that water for $139,000. For comparison’s sake, the Metropolitan Water District of Southern California that supplies much of urban southern California with a portion of their water supply charges in excess of $700 for an acre foot of essentially the same untreated water drawn from the Delta, and will soon exceed $1,000 for an acre foot of treated Delta water. 

The Settlement Contracts also contain narrow “shortage provisions,” meaning that these contractors almost always receive 100 percent of their contract supplies, even in a dry year like 2013, while other CVP contractors are receiving only 20 percent. This inequity in priority causes many junior contractors, like Westlands, to receive less water in any given year, because the needs of the Settlement Contractors are met before nearly all other water users. Many of these more junior water users would be better off if the Settlement Contracts reflected a more equitable share of the pie. 

The Bureau compounds this problem by over-estimating the size of the pie itself in its CVP contracts, promising far more water than can be delivered, and creating false expectations and pressures to deprive California’s rivers and streams of needed flows. CVP contracts total more than 9.5 million acre-feet of water annually. As the Delta Stewardship Council explains, 9.5 million acre-feet is more water than is used by all of urban California in a year. It’s also more water than the Central Valley Project has ever delivered or, likely, could ever deliver, given the realities of climate change, other demands on the system, and limits on how much water can be captured, stored and moved. In fact, just taking as much water as we do under CVP contracts has caused our rivers to literally dry up, nearly wiped out California’s 150-year old salmon fishery, and is driving other fish and wildlife to extinction.

We can make this system more rational and fair. It’s time to reform CVP and SWP contracts to reflect realistic amounts of water available for delivery each year, at prices designed to incentivize efficient use of this valuable resource. Such reforms would cause everyone in the system to be better off. Farmers could reliably predict how much water they’d have available for use; fishermen, Native Americans, and everyone living downstream wouldn’t have to constantly defend against attempts to take water needed for water quality protection and other environmental uses in order to meet unrealistic contract deliveries; and politicians could expend less energy trying to legislate for more rain and snow in California.

And California’s water rules would be far less ancient and unfair.