Water, Water Everywhere

Agriculture creates the rural character of the Okanagan Valley so valued by residents and tourists alike. The valley produces 25% of the total value of British Columbia's agriculture, and is the province's major producer of apples, peaches, pears, and other tree fruits. The valley is also famous for its grapes and many wineries. Vegetables and forage crops that support milk and meat production are also important. Agriculture occupies about 70% of the developed valley lands, and accounts for about the same proportion of water use.

from: Okanagan Basin Waterscape by Natural Resources Canada

Approaching Kelowna BC from above Okanagan Lake, a tourist could be forgiven for thinking that the least of the city's problems is water. The lake itself is huge, extending out of sight in both directions. Water recreation is obviously one of the area's draws, judging from visible boats. And in September the orchards above the lake are deep green.

Okanagan Lake is a huge body of water, but much of that water is "old", meaning that it has accumulated over a long period of time and is slowly recharged. According to hydrologists who have studied it, the lake is unable to sustain significant withdrawals without a lowering of its level, something that would be particularly disastrous for the many marinas around the shore. And the recharge ability of the small streams that feed the lake has recently come into question. Reporting on drought conditions developing in the Okanagan, the Columbia Valley News had this to say on July 24, 2009:

Inflows to Okanagan Lake have been well below normal for the past 12 months, and are ranked as the fifth-lowest since measurement began in 1918.

Adding to stress on the water resources of this semi-arid basin is rapid population growth. Population has doubled in the past two decades, to somewhere around 300,000. Irrigated agriculture may take 70% of the water, but the towns and cities are where the demand growth is. This situation has the ingredients of a classic farm-city water conflict.

In the late 70's an organization was formed to bring together all of the water stakeholders in the region. Named the Okanagan Basin Water Board, it has representatives from urban, agricultural, and first nations groups. Originally the group concentrated on milfoil weed abatement and water quality, but it appears that the focus has shifted to water sharing.

Canada's water law comes from the English tradition, and thus has a riparian tendency, although with some features borrowed from US appropriation laws. My suspicion so far is that the tendency here is to begin cooperating at an earlier stage than in the US, but I'll have to study more to really understand if that's the case.

Water Call in Idaho

Idaho law distributes water rights on a first-come, first-served basis, and Clear Springs Foods has older water rights than the groundwater pumpers.

from the Capital Press Agriculure News, August 23, 2009


In Idaho, about 150 users of irrigation water, covering about 4,000 acres, have been ordered by a court to stop pumping groundwater. This came as a result of a "water call" or claim to more senior rights by a fish farm called Clear Springs Foods. Clear Springs claimed that as a result of groundwater withdrawals by more junior water rights holders the flow from the springs which provide its name had dropped to levels inadequate to maintain operations.

This is an intriguing case because it brings out many aspects of the way water law works in the western states. Idaho is an appropriation state, and these prior water rights normally only apply to surface water. In this case however, the groundwater pumping was connected to the flow of the surface springs to such a degree that Clear Springs could effectively make a case with the state water adjudicator. He ruled in favor of Clear Springs, and in March of this year the irrigators were ordered to cease pumping. A flurry of legal actions attempted to stay the order, leading to a ruling this past Monday, August 24 temporarily delaying the shutoff to allow further negotiations.

I will be following this case closely for the precedents it may set.

Hetch Hetchy

Dam Hetch Hetchy! As well dam for water-tanks the people's cathedrals and churches, for no holier temple has ever been consecrated by the heart of man.

John Muir, 1908

I seem to be stuck in California, both topically and bodily. Yesterday while driving up to Grass Valley in the "gold country" foothills of the Sierras, I saw a highway sponsorship sign for an organization called "Restore Hetch Hetchy". Once I had internet access I had to research the controversy, with which I had only passing familiarity.

Hetch Hetchy is a valley in Yosemite National Park which was named after the native American name for an edible grass which grew there. Though smaller than Yosemite Valley, it shares many of the same glacier-carved features including massive rock faces and ribbon waterfalls. To some of its enthusiasts it is even more beautiful than Yosemite itself.

The thing that makes Hetch Hetchy so interesting is that as major water controversies go, it was so early. The fight over damming the valley's Toulumne River had to be one of the first major battles between "nature lovers", as environmentalists were then known, and would-be takers of water. And the takers won, even though such iconic figures as John Muir and Teddy Roosevelt were on the opposing side.

The battle raged from 1906 to 1913, when the Riker Act ended it in favor of the dam proponents. O'Shaughnessy Dam was completed in 1923, and the main part of the valley has been underwater ever since. But the Sierra Club and other lovers of nature never fully gave up. In recent years, dam removal has become something of a low-key trend, and momentum for restoring the Hetch Hetchy grew when Don Hodel, Ronald Reagan's Secretary of the Interior, began advocating for the removal of the dam. According to studies that were conducted at that time (1988), the water and power benefits of the Hetch Hetchy reservoir could be provided in other ways. This view seems to be rather non-controversial; the argument has shifted to the cost of removing the dam without losing its water withdrawals.

I don't have a strong opinion on the Hetch Hetchy controversy, but I do have two observations. One is that, whatever the outcome of the battle over the Valley, it's safe to say that it would never get built today if it hadn't been back than. The despised "nature lovers" of 1913 have become the dreaded "enviros" of today, and their political and legal strength has only grown.

The corollary observation is that we have undoubtedly seen the "high water mark" of big dam projects that supply much of the irrigation and drinking water in this country. From here on, conservation of what we have already available can only increase in importance.

Los Angeles Water Restrictions

The effect of all these efforts is beginning to trickle down. In June, the most recent figures available, city water use dropped by 12.7% compared with the same month in 2008, the lowest overall level of consumption in 32 years.

from The Wall Street Journal, August 24, 2009

A report in the Wall Street Journal covers the efforts of water authorities in the greater Los Angeles area to decrease water use. This includes using "water cops" to issue citations and, as a last resort, $100 fines to Angelenos who break water conservation rules. Another tactic is to encourage neighbors to either report the offenders or hang a water conservation tag on their doorknob as a gentle reminder.

And reminding rather than coercion seems to be a theme of the current effort:

"The last major drought was about two decades ago," said David Nahai, the head of the city's Department of Water and Power. "People may have forgotten that we live in a semi-arid area"

The article points to the effectiveness of a tiered billing structure, something most experts on billing structure recommend in drought-affected urban areas:

The biggest threat water wasters face is their bill. Under the city's two-tiered billing structure, rates spike by 45% for customers who use more than a certain amount. Fashion designer Ann Ferriday said her water bill became "something crazy, like $450," which she said might be attributable to her pool, which needs to be refilled from time to time, and her daily lawn waterings.
"My bill was so outrageous," she said. "They said I was on this upper tier and I couldn't figure out why." She has since tried to remedy her water problems. But she said she can't wait till the drought ends "so that everything can go back to normal."

Ms. Ferriday may have a long wait.

Regulated Deficit Irrigation

Goldhamer calls the week-long study the greatest professional experience and research accomplishment of his 30-year water management career.

"Aerial Imagery Future of Water Management" Western Farm Press August 5, 2009

I've been reading about new methods for tightly controlling irrigation to minimize water use and salt buildup in the soil. Here's a brief description of regulated deficit irrigation (RDI) from the website of the California Agricultural Water Stewardship Initiative:

Deficit (or regulated deficit) irrigation can maximize water use efficiency by maintaining or increasing yields per unit of irrigation water applied. In deficit irrigation, the crop is exposed to a certain level of water stress for certain periods or throughout the whole growing season. The expectation is that yield reduction will be insignificant compared to the benefits gained from decreasing water use. However, deficit irrigation may only work for certain crops and the grower must have prior knowledge of crop yield responses to deficit irrigation. One of the greatest obstacles to implementing deficit irrigation is the wide range of crops that one grower may manage in any given season in California. More research on deficit irrigation forspecific crops and soils is needed to ensure guidelines for implementation are successful.

One of the challenges encountered in managing RDI is that plant stress needs to be monitored to avoid long-term crop damage. A piece in the Western Farm Press reports on a recent joint study done by David Goldhamer of UC Davis and scientists from the University of Cordoba in Spain. Dr. Goldhamer has been researching plant stress measurement for some time, and he was intrigued by that ability of the Spanish drone aircraft and their specialized infrared cameras to measure canopy temperatures. This general approach has been attempted in the past using satellites, but the low-flying drones made possible a degree of resolution which has previously eluded researchers.

I think that we can expect to see tremendous progress in the next few years in the efficiency of irrigation. As water becomes more valuable and land damage through overapplication of water becomes more obvious, technological advances like RDI will become increasingly attractive.

Peter Gleick in Stockholm

I'm regularly approached by scientists and policymakers here asking me if it is could really be true that we do not measure and manage all groundwater in California. It is. We don't. And outside of California it is well understood that this means it is simply impossible to have a truly sustainable water system. It's like having a bank account without know who is taking money out or how much they are taking.

Peter Gleick, president of the Pacific Institute, writing from the Stockholm Water Conference

The Stockholm Water Conference is underway, and I'm very sorry to be missing it. Maybe next year....But we have a summary report from Dr. Water himself, Peter Gleick. As I mentioned in yesterday's post, one of the things that I appreciate about Dr. Gleick is that he values irrigated agriculture, and wants to see it survive and prosper in the US. But at the same time he realizes that without sustainable water practices irrigation in many arid or semiarid locations has no future, which puts him at odds with those who take a shorter-term view.

I was talking with someone the other day about water as a finite resource that that needs to be carefully managed, and he seemed puzzled. He asked, "Can't we just bring it in from other places?" And the answer is, well, yes, to a certain point and at a certain cost and provided whoever is using it in the other place doesn't object. And if all else fails, for potable water there's always seawater to be desalinated. But for irrigation that's really not a realistic option. Which leaves...careful use of what we have.

More With Less?

Vegetables...produce substantially more revenue per unit land or water: vegetables account for only 16% of the irrigated acreage but use 10% of the applied water and generate 39% of California's crop revenue.

from More With Less: Agricultural Water Conservation and Efficiency in California, a Special Focus on the Delta by H. Cooley, J. Christian-Smith, and P. Gleick

Over the weekend I read a 67-page report from the Pacific Institute which discusses some very practical measures which would allow California agriculture (and by implication the Central Valley) to survive and thrive on less water. What I most apppreciate about this study is the concern it shows for the economic health of agriculture and the livelihoods of farmers and their business partners. The other positive is that its recommendations are not extreme, and in most cases match trends that are underway, driven by ongoing shortage.

The report has a number of legislative recommendations aimed at doing away with some perverse incentives to waste water. It goes into water law (California has one of those hybrid Riparian/Appropriation systems discussed in one of my water law posts) and recommends some minor changes. One of these is a classic change already made in many states faced with water shortages:

Define instream flow as a beneficial use in California


"Beneficial use" is a legal term in an approprative system, and it determines what constitutes a legitimate appropriation which establishes and maintains a water right. What this means is that leaving the water in a river in order to maintain an adequate volume of flow is a legitimate use which can keep a water right alive. (In Australia this use of water has been given the name "conveyance", and is an important feature of that country's new approach to water law.)


The concrete suggestions for water saving are as follows:

• Modest crop shifting


• Smart irrigation scheduling


• Advanced irrigation management


• Efficient irrigation technology

The thing to note about these approaches is that all of them are already happening at some level, so this is not a fantasy approach.

Fish vs. Farms?

Before 1850, there were probably 1 million to 2 million steelhead spawning in Central Valley waterways. Most recently, there were 3,628 spawners, according to a 2005 study.

From the Stockton Record, June 14, 2009

After a couple of days in the Central Valley and a few hours spent researching the history and current situation around the drought, I watched a Youtube video of the Sean Hannity broadcast on the same situation. I knew that the broadcast had taken place because they were scheduled to visit the Westlands Water District later in the same day we were there. Sean gets very exercised about the outrage of farms being shut down to save "baitfish", the delta smelt, which play some role in the current limitations on pumping Sacramento River Delta water into the west side of the Central Valley.

I'm not sure what Hannity's motivations are (although they don't appear to be to educate the public on a complex situation). But saying that the water problems of the Central Valley are due to lunatic environmentalists trying to save the delta smelt is like saying that General Motors went bankrupt due to Congress passing fuel economy laws. There may be some slight connection but there's a whole lot more to the story than that.

This brings back to mind the talk given by Professor Mike Young at the Irrigation Water Conference. He used the term "strife" to describe the kind of pointless, futile conflict that took place in Australia in the early stages of their long water emergency. It seems to me that the current situation in the Central Valley lends itself to the kind of solution he was talking about, where everyone involved realizes that the battles aren't going to make any more water, and they sit down to arrive at solutions together.

The environmentalists concerned about the ecological health of the Sacramento Delta aren't going to go away. The cities who also crave Delta water aren't going away either. And it wouldn't be good for the country if agriculture went away in the Central Valley. So what can be done?

It seems to me that the most urgent item on the to-do list is already in process, but needs to be stepped up in a water-short environment. We visited a huge orchard complex further south in the valley which has used nothing but drip for many years, in conjunction with all of the best practices for optimizing irrigation. They go to great lengths to not use one more drop of water than necessary. This not only saves water, but more importantly it helps slow the degradation of the soil due to salinization. On the other hand, we stopped at one tomato farm to look at some of their equipment, and immediately noticed a leak of 60 gpm or so rapidly growing a pool on the ground. The equipment looked very poorly maintained, and it wasn't hard to imagine that such leaks are a frequent occurrence. This kind of waste was likely insignificant when the Bureau of Reclamation was providing 100% or even 50% of nominal contracted water, but at 10% it's not going to work for long.

If we again look to Australia for a picture of the future, it may be that Central Valley growers will have to evaluate their crops, and in some cases switch to the less water-intensive varieties. On the municipal side, valley cities like Stockton are clearly going to have to tighten up their water and wastewater practices, including more extensive water reuse for landscape irrigation.

One plan for increasing available irrigation water while at the same time protecting the delta involves raising the dam that forms Lake Shasta. Not surprisingly, many of the people who live in the vicinity of the lake have an opinion about that. The reality is that the era of grand irrigation projects and new dam construction has passed, and these days every action to secure more water has its inevitable reaction.

Signs of the Times

No Water = No Jobs, No Food, No Future

Sign on I-5 near Fresno

Driving up I-5 yesterday along the western edge of the Central Valley was a fascinating experience for a water wonk. About every half mile there was a sign fastened to a fence, a farm trailer positioned for maximum visibility, or a building. "Congress Created Dustbowl" was the most popular. This was typically in dusty, fallow fields, presumably due to the absence of irrigation water.

I got to talk with some folks in operations at the Westlands Water District. This is the largest irrigation district in the US, and certainly among the hardest hit by the water situation here in the Central Valley. They have resigned themselves to the apparent reality that 50% of the original Bureau of Reclamation water allotment (from the start of the Central Valley Project) is the new "normal". However they and the growers were caught off guard by the 10% (up from 0% originally proposed early in the summer) that they are actually getting. They and the growers are piecing together sufficient water for some crops in some places through limited transfers from other areas plus unsustainable groundwater pumping. We saw some some bumper crops of tomatoes ripening in the fields, as well as healthy-looking almond and pecan trees. But as always, the pain is spread unevenly. Some farmers are doing moderately well, others are being ruined.

I was impressed with the folks at Westlands. It doesn't appear to me that they have ever taken the water they manage for granted. They had universal metering long before other districts, and they seem to have a good grasp of how much water is being used by whom, which believe it or not is unusual. They are hoping to obtain stimulus money (decision pending) to further upgrade their monitoring and control ability to nearly realtime (daily), through telemetry. Of course, all of this is to some degree an act of faith. It assumes there will be at least some water in the future, which is by no means certain.

California Here I Come

The District has experienced a decrease in its water supply since the drought that began in 1987. Drought conditions as well as environmental regulations have led the Bureau of Reclamation to dramatically reduce the amount of water it delivers to Westlands, to the point where today, the District can expect to receive only about 50 percent of its contractual water supply in an average water year.

from the Westlands Irrigation District website

I'm headed out this evening for Fresno, bound for the Westlands Water District. I hope to get an opportunity to see firsthand some of the issues facing this largest irrigation district in the US. The Westlands website has a good summary history of the district, particularly its relationship with the Bureau of Reclamation. Whatever interpretation one may eventually make of some of the more controversial facts about the Westlands' situation, it's hard not to be concerned about the future of this highly-productive agricultural area and its contribution to the nation's food supply.

There are two main problems facing the Westlands' roughly 600,000 acres of irrigated farmland. The obvious one is an immediate shortage of water, the other is a surplus of water. Both are common to areas of irrigated farmland. The surplus comes in the form of runoff, which has apparently been a problem from early on. Inadequate drainage led to a buildup of saline groundwater, which in some places is only ten feet below the surface.

Many areas of irrigated farmland have been rendered unusable by salt buildup in the soil, both in modern and historic times. The Westlands' situation is apparently further complicated by the presence of other elements in the irrigation water, such as selenium and boron.

I'll pick up all the information that I can and post more in the next few days.

Still More Water War

While the judge's ruling is more far-reaching than we anticipated, it is not entirely unexpected. ....Now that the legal question of Lake Lanier’s usage has been clarified, it is UCR’s hope that all stakeholders will get out of court and get to the solutions of how to manage this finite resource to the benefit of all who depend upon it, upstream and downstream.

from the website of the Upper Chattahoochee Riverkeeper

I'm back in Seattle now, but I can't quite let go of the tri-state water war I left behind in Atlanta. It's an intriguing case for many reasons. One of them is that at one time it appeared to be a model for cooperative settling of interstate water disputes. Legal battle between Georgia and Florida/Alabama was joined in about 1990, and then in 1997 there was what appeared to be a giant step toward resolution. The parties signed two agreements, one for each of the affected river basins, the Apalachicola/Chattahoochee/Flint (ACF) and the Alabama/Coosa/Talapoosa (ACT). These agreements were then ratified by Congress.

While the compacts didn't settle the details of tri-state water use, they did create a detailed framework for creating a sharing system, with deadlines to keep things moving. Most unfortunately, the deadlines passed in 2003/2004 without said sharing system in place, throwing the case back into the courts and leading to the Federal Court ruling by judge Paul Magnuson this July 17. And as the judge described it, for Atlanta the ruling if left unchanged will be "draconian". He allowed three years before it takes effect so that Congress can change the Corps of Engineers mandate if it so chooses.

Which brings up another interesting aspect of the whole situation. In many respects this is a water war between greater metropolitan Atlanta and Alabama/Florida. Without the massive withdrawals that Atlanta metro came over time to make from Lake Lanier, this quarrel likely woudn't have come about.


Last evening I was thumbing through the Biennial Water Report 2008-2009 (edited by the ubiquitous Peter Gleick), and happened onto a piece on urban water use in three example cities, Atlanta, Seattle, and Las Vegas. Since I live in Seattle and had just returned from Atlanta (and was glad not to be in Las Vegas in August) I had to read it and study the statistics. One great thing about the usage stats is that they were broken down into indoor and outdoor use, allowing the separation of true domestic use and home landscape irrigation.

Not surprisingly, Las Vegas led the way in daily per capita use, at around 170 gallons, with about 70 going to irrigation, 100 to indoor use. Seattle had the lowest overall consumption at around 75 gallons, with very little going for irrigation. Atlanta had the highest indoor consumption, at around 110 gallons per person, plus around (surprisingly little) 15 for irrigation.

During the recent drought, Atlanta was apparently able to get average daily per capita use under 100 gallons, including irrigation. However, when the drought ended this spring watering restrictions were lifted and there are already signs that use is bouncing back.

As major cities go, Atlanta is rather constrained in water sources. Groundwater access is difficult due to the nature of the underlying rock formations, and the city itself is on relatively high ground. The Chattahoochee and Coosa rivers have been its main water source as it grew by leaps and bounds to around four million (metro area).

So one way that many observers portray the situation is that an overly-indulgent Army Corps of Engineers (custodian of the the dam that created Lake Lanier from the Chattahoochee) enabled Atlanta's uncontrolled and somewhat unplanned sprawl by allowing ever-increasing withdrawals from the river system with little regard for the downstream users. Alabama and Florida had to go to court to stop the growth of the withdrawals.

It's odd that a state which receives 50" of rain a year would be involved in a pitched water battle, but that's the reality. One can only wonder what the eventual tri-state water war in the desert Southwest (Arizona/Nevada/California) is going to look like. The three southeastern states could set a pattern for cooperative conservation and rational sharing, but given the history so far the prognosis isn't good.

Tri-state Water War (con't)

"Florida recognizes that a solution must include equitable sharing of adversity."
from a letter sent to Secretary of the Interior Ken Salazar by Florida Governor Charlie Crist


There's a great summary of the history of the tri-state water war on the site Waterwebster.com. One of the links there, from the Atlanta Journal Constitution, covers a threat from a state legislator to move the annual Georgia-Florida football game in retaliation for Georgia's loss in the July 17 court ruling. Now that's a serious conflict!

Interestingly, this all comes after the drought that severely depleted Lake Lanier has officially ended with a particularly wet season this past spring (although the lake still stands nine feet below normal).

Also interesting is that Governor Sonny Perdue today had a meeting with representatives of other towns downstream of Atlanta, in an effort to form a unified front in the water wars. Georgia cities like Columbus and LaGrange which are farther down the Chattahoochee are concerned that their interests will be overshadowed by those of Atlanta. In some ways their sympathies might be more with those of, say, Florida in receiving the leftovers from Atlanta's withdrawals.

The battle now moves to Congress. It's hard to think that Washington DC is the best place to work out complicated water-sharing issues, but that's how it is at the moment. Reviewing the history of the conflict, you can see that various federal agencies have stepped in at one time or another to try to help settle the war, and it has been in and out of Congress more than once. I think though that until the three parties somehow become motivated to hammer out a workable resolution among themselves there will be little progress.

Maybe it will take another, longer or deeper drought? Like the one in Australia?

Tri-State Water War

ALBANY - Gov. Sonny Perdue will hold a meeting here Thursday to brief those in attendance about a recent federal court ruling that leaves Georgia's future rights to the Chattahoochee River and Lake Lanier up to Congress.

Albany Herald, August 4 2009

I'm currently in Georgia, having come from Alabama yesterday. These two states along with Florida are the combatants in what has come to be called the "Tri-state water war". This legal battle has contested Alabama and Florida against Georgia, which takes much of its Chattahoochee River water upstream of the other two states. Alabama wants to be sure that it has enough river water to cool some of its power generation processes, and Florida needs water near the mouth of the river to protect wildlife.

There was a key court ruling just over two weeks ago which was a major landmark in the ongoing legal combat between the states. The court ruled that Atlanta could no longer take water from Lake Lanier, one of the city's most important sources, without permission from Congress. The reason is that the dam which created Lake Lanier was a federal project whose original stated purpose was to generate hydroelectric power, not create a reservoir for water extraction.

Georgia has been fairly agressive overall in promoting water conservation in irrigation (much of which is located in southwest Georgia and relies on Floridian Aquifer groundwater). It was one of the earliest states to mandate irrigation water metering, which is a key first step in reducing irrigation usage - as the old saying goes "you can't control what you can't measure". Recently though the spotlight has been on urban use as Atlanta's needs slowly lowered the level in Lake Lanier during intermittent drought years.

I'll be writing more on this fascinating interstate water conflict in the near future, including the history of the two compacts that were created in an attempt to settle the issue.

Riparian Reasonableness

"Under the riparian doctrine rights attach to riparian land, i.e., land
bordering on a natural stream or lake, by virtue of its location"

Water Law, 3d Ed. D.H. Getches "Nature of Riparian Rights"

Twenty-nine states (primarily Eastern) follow the riparian approach to water rights. The fundamental doctrine that water rights derive from ownership of land which is on the river bank or lakeshore dates back to European and especially English law. Early American settlers brought over the common law concepts and further developed them, particularly around the key concept of "reasonable use". This is the main limitation on riparian rights. Not only must the water use itself be reasonable (however defined), it must not injure the reasonable use of other riparians.

As with beneficial use, discussed in the last post, the range of reasonable uses is broad. However, some uses are more readily accepted under law as reasonable than others. So-called "natural" uses, which include domestic consumption and garden irrigation, are generally preferred to "artificial" uses such as industry, mining, or agricultural irrigation. Some of the criteria used to determine reasonableness are:

• Suitability to the body of water
• Economic value
• Social value
• Potential for harm to society
• Protection of other existing users

Most states which use the riparian doctrine also limit water rights through a permit system. Permits typically are restrictive with regard to the nature of the use, the volume or rate of flow that can be taken, and the location of diversion from the body of water.

One key difference between riparian and appropriation-based rights is the the latter is a fundamentally "use it or lose it" system, ie the beneficial use must continue in order to retain the right. Since riparian rights derive from ownership of waterfront land, they typically continue whether exercised or not. (The one caveat is that permits once granted may lapse if not used.)

On the face of it, appropriation and riparian systems seem radically different in key respects:

• Use it or lose it vs. perpetuity
• Not tied to land ownership vs. deriving from riparian ownership
• Senior rights dominate vs. all rightholders share

It's interesting then that ten states have hybrid systems which however uneasily try to combine the two systems. I'll take a stab at describing the typical hybrid system in a near-future post.

FITFIR

"There is keen competition among water users"
from the Introduction to "Water Law", D. H. Getches

OK, would-be water wonks, what does the title stand for? Don't know? Read on!

One painless way to start getting acquainted with water law is to read Ten Water Laws of the West, from the satirical website Frumious Bandersnatch. Not surprisingly, the author is a "recovering attorney", and he throws together some laws (as in Murphy's) with Laws (as in A-B Cattle Company vs. United States) of water in the western states.

So, get comfortable, we'll be here for a bit. There are three basic approaches to water law in the United States. The eastern states follow a system called "riparian", which I'll cover in the next post. It's older, and evolved from English common law. The driest states of the west use an "appropriation" system. This was developed more recently (mid-to late 1800's) and follows a system that miners came up with as they worked claims on federal lands. The Pacific coastal states and some of the semi-arid central states use a blend of the two, and these are called "hybrid" systems.

The term "appropriation" comes from the Doctrine of Prior Appropriation, also known as "First in Time, First in Right (FITFIR). What this means is that whoever started diverting the water first for a "beneficial use" has a more "senior" right to it forever after, and can force more "junior" users to stop taking water until the senior rightholder has all that his/her right allows.

In water discussions in the West, the term "beneficial use" comes up frequently since it's a key feature of an appropriative system. Beneficial uses come in a wide variety, and can include mining, irrigation, domestic uses, industry, and more recently, wildlife and recreation.

An important corollary is that the actual volume of water connected to a right is determined by the beneficial use, and can change over time. A key concept is that waste is not a beneficial use. So as irrigation methods become more efficient, in theory the amount of water tied to a right to irrigate a certain acreage could actually decrease. In practice there hasn't historically been much monitoring of the volume diverted and its connection to the beneficial use, but with increased stress on the resource overall this is beginning to become an issue. Hence the move towards requiring metering of irrigation water.

If you read the earlier post about Prof. Young and his presentation on Australia, you may remember that one of his recommendations was that water rights be disconnected from the land, expressed in volume terms (acre-feet or gigaliters, for example), and tied to individuals who can sell or trade them. You can already see some ideas here that would change an appropriation system of water law.

Strife!

"Whiskey's for drinkin' and water's for fightin'"
Old western saying

There was a piece in USA Today yesterday about the water situation in California's Central Valley. It highlighted the economic suffering of some of the Valley's growers, as in this excerpt:

For those like Allen at the end of the water-rights line, the flow has slowed to a trickle: his water district is receiving just 10% of the normal allocation of water from Federal Bureau of Reclamation reservoirs. He says he's been forced to lay off all his workers and watch the crops die on his 300 acres while bills for an irrigation system he put in are due.

"My payments don't stop when they cut my water off", Allen
says.

The piece goes on to give some of the history of the
situation:

The federal restrictions arise from environmental suits brought under the Endangered Species Act that argue pulling water out of the delta harms fish. A federal judge in 2007 ordered new biological studies and restrictions on water pumped out of the delta for farmers.

A group of water authorities filed countersuits. While the issue remains unsettled, the rulings have idled the water pumps for 11 months a year, Westlands spokeswoman Sarah Woolf says. Environmental groups say water officials and farmers are overstating the problem.

"This is not a fish vs. farms problem," says Peter Gleick, president of the Pacific Insitute, an environmental research group in Oakland. "I believe they're using the drought as an excuse to try and overturn these environmental decisions."

In yesterday's post I talked a bit about the situation in Australia as described by Mike Young, a professor at the University of Adelaide. Mike described the starting point in the Australian process as "strife" (a word probably more in everyday use in Australian than US English). I think that in the California situation we have a pretty good example of strife: conflicting uses for river water being battled over in court. As Mike pointed out, strife is useful in bringing the issues sharply into focus, but it's not a very good way to arrive at cooperative solutions. The problems are further compounded by laws and water rights structures which were constructed at a time when there was more water available and fewer claims on it. Another excerpt from the USA Today article illustrates this aspect:

Richard Howitt, professor of agriculture and resource economics at University of California-Davis, estimates that statewide about 30% of the water shortage is a result of environmental restrictions and 70% is drought. But the impact of the regulations hits particularly hard here in the farm region, he says, because complicated water-rights laws leave Allen and his neighbors at the end of the line in water distribution.

Prof. Young describes a situation in Australia in which all parties have moved beyond strife and into cooperative problem solving. He hints that the transition is neither full nor perfect, but he describes a situation in which problems similar to those in the Central Valley are settled relatively quickly and without the help of courts or lawyers. The main lubricant in this process is of course, money.

I'm curious as to how successful the Australian process really has been, and how applicable it is to the California situation (as well as others in the US). The panel discussion in Utah included Prof. Young and Dr. John Eckhardt, who has been a major participant in the California irrigation water situation (particularly in the Imperial Valley). In one exchange of views, it was clear that John was skeptical about the prospects for an Australian-type solution happening in California anytime soon.

It looks like I will be in the Central Valley two weeks from now, talking with some irrigation professionals. If that happens as planned I'll report on anything that I learn.

The Australian Experience

Yesterday I promised a post on the luncheon speaker at the IA Water Conference. Mike Young is Professor of Water Economics and Management at the University of Adelaide. He kept our attention by describing Australia's experience with extended drought (they now call it "climate change") and the changes it has brought about in water policy.

Mike opened with a number of slides showing how dire Australia's water situation is, particularly in the River Murray basin in the southeast. He gave the long-term average annual inflows to the river as about 7,200 gigaliters (GL) and the example year 2006-2007 inflows as 611 GL, obviously a very dramatic drop.

During the first few years of the drought, the collective response was similar to what it has been in the US when irrigation water supplies are stressed, using Mike's word, "strife". Battles raged over which of the water users would have to give something up. As he described it though, over time the realization sank in that all parties would have to cooperate, since in reality there was so little water left to fight over.

The model that eventually emerged through extended trial and error was what Mike described as "a robust sharing system."
Its key points, from one of his slides, are:

• Share rather than seniority system
• Formal volumetric allocation systems
• Minimal role for courts and lawyers

Key aspects include two classes of shares (high security and low security), universal metering of all water used, and individual rights to trade water shares, not tied to acreage but purely volumetric.

One interesting result of this new system was that some of the owners of water shares made a lot of money by trading them. Theoretically, this is a good thing because it puts the actual water in the hands of those who place the highest value on it. (This reminds me of an old saying in the American West, "Water always flows uphill to money.")

Mike ended with the following pieces of advice for US water professionals:

1. Encourage discussion of and planning for very long drys.
2. Encourage transfer of ownership to individuals
3. Encourage replacement of a seniority system with a share system
4. Encourage integrated management of ground and surface water
5. Encourage preparedness for a different water future and need to trade water on a daily basis.

I'm currently reading up on water law, so in a future post I'll talk about the contrast between Australia's current approach to water and typical US water law. It's not surprising that many of the ideas that came to the surface there are also being discussed here in the US as some areas experience similar levels of water shortage.

The IA Water Conference

Last Wednesday and Thursday I attended the Irrigation Association's first Water Conference, held at The Canyons Summit Resort in Park City, Utah. The IA has an annual trade show in November or December (this year it will be in San Antonio), but this conference was a new idea, and from the responses of the participants I would guess that it will be an annual event. Most of the relevant content came through a marathon series of presenters on Thursday, including a key presentation during lunch. The speaker seized our attention by suggesting that the US can use Australia as a crystal ball to see our water future. It deserves its own post, so I'll cover it tomorrow.

What I will most remember from the conference is the animated panel discussion, with participation from a very engaged audience of irrigation professionals. There seemed to be a strong consensus that it's time for the Irrigation Association and its leadership to step up their response to the looming water crisis. Since irrigation is generally considered to use about 2/3 of the world's available fresh water, that seems like a good place to begin in addressing our water challenges.