The Elusive Quest for Water Reform in California

By Heather Williams

Water Usage Reform in California (as in much of the West) is hampered by the remnants of past decisions, by the principles and the institutions embodying them of a by-gone era.

It has long been the case that people who have come here from elsewhere, taken in by the gentle Pacific breezes, the ocean sunsets, the panoramic vistas, the sunshine, and the mild temperatures have mistaken the beauty and easy climate for an easy living.

For those who pick up stakes and move out here, that illusion is often shattered. For current transplants, it comes in terms of a high cost of living, of ceaseless traffic, of bad air, and a dodgy job market. For those who come from outside national borders, there may be the reality of police brutality, pestilent living quarters and wages far below what they legally should be.

For migrants in the last century, illusions were shattered by wild, often violent competition and speculation over California’s natural resources.

We all learn in school about the Gold Rush. Even in Kansas, we had history units about the mayhem that surrounded the rush for riches here. In fact, the most consequential competition in the state was not for its gold claims, or even its golden lands, but instead for its scarce, sweet, clear freshwaters.

The title of my talk—the elusive quest for water reform in California—refers to a conundrum we find in this lovely, hard place. Virtually every person in the state who knows anything about water would tell you that reform would do the state a great deal of good, and also:

  • That we should use water better, with less energy expenditure, fewer wastes pouring into waterways, more storm-water capture and re-use

  • That we should cease the lunacy of growing cotton or alfalfa in the desert, or putting sprawling subdivisions with single-family homes and lawns over stressed aquifers that yet lack court-supervised compacts for sustainable take-outs.

  • That we should ensure a real human right to clean water for the very farmworkers who toil all day in irrigated orchards that provide luxury produce to our stores.

Keep talking to these experts, though, and they will tell you that no matter how obvious these problems are, and how common-sense it may seem to overhaul current arrangements and institute a sweeping water reform, that it’s unlikely to happen.

I shall argue that water reform is elusive not because our leaders are unable to see the future—one of increasing population and decreasing water supplies—but instead because of the hidden weight of the past.

In the following comments, I shall contend that many water arrangements in California—as ludicrous as they may seem—are going to be remarkably difficult to alter at a system level. They reflect a history of competing and often mutually incompatible uses of water that have been locked in with a breathtakingly large number of local compromises, and sealed in place with a set of now probably irreversible inter-regional water transfers. So, at a certain distance, while California’s water governance seems to have a lot of heft and sense:

  • the standard for water use is written into our Constitution (Article 10, section 2), establishing reasonable and beneficial use

  • water waste is prohibited

  • we have a state water board that has power over allocation

  • we have regional water quality boards that have power over dischargers

  • we have utilities (appropriators) who clean and treat our urban water and send it to us

it is more complicated than that. When you look closely, water governance in California is extraordinarily fragmented. There are, in fact, a tremendous number of entities, public and private, who have some say over rights to water and watercourses, who deal with some aspect of allocation, transfers, treatment, storage, pumping, power generation, banking, and conveyance. Some counts put the number of entities at sixteen thousand.

Many of these entities stem from water rights claims made prior to the existence of regulatory authority in California water. Others stem from claims and projects established in a piecemeal way with court orders, federal laws, and the incorporation of hundreds of new cities in the 20th century. This complexity is one of the reasons comprehensive water reform is unlikely at a state level.

The current struggle to achieve such reform has a long history, perhaps dating back to the very moment that people began tilling dry soils in Alta California, sometime in the early 1770s. Mission authorities weighed in on user rights in instances of conflict, and so did the Viceroy. Ranch grants under the Mexican government carefully assigned water use to grantees along with responsibilities for the maintenance of irrigation canals, or zanjas.

Unquestionably, a more urgent need for water reform emerged after 1848. Mining, irrigation, and intensive cattle-raising were three industries that were bound to clash in struggles over water. Cattle ranchers, of course, wanted to use the streams and rivers that flowed through their lands, as well, of course, as the meadows and gallery forests they nourished. These are so-called riparian rights. Miners, meanwhile, wanted the right to channel water from those same streams and rivers to places where they were scraping gold from the dirt. They needed the water to process the ore. Later, they would need enormous amounts of water to blast away entire hillsides with hydraulic mining. Finally, irrigators wanted to convey waters from streams and rivers to dry lands for orchards and vineyards and row crops.

The California legislature, little more at the time than adventurers, miners, irrigators, ranchers, managed to create the first great failure of government when they passed not just one, but two unifying frameworks for allocating water that directly contradicted each other. Rather than having one supercede the other, the legislature passed riparian and so-called laws of appropriation (laws that enabled people to own water rights and convey the water from the channel to some other place). They left the courts to sort it out.

With uncertainty surrounding a scarce and valuable commodity—water—an epic race for the rivers was unleashed. During the latter half of the 19th century, an extraordinary intensification of these three land and water uses—grazing, mining, and irrigation—would make it clear that the state simply could not be governed without water reform. Cattle, for example, had multiplied by the mid-1860s to three million grazing animals reliant on grasslands and marshes, of which there were perhaps 20 million acres available. With each animal needing up to 70 acres a year in a sustainable system, you can imagine what the consequences were for erosion of lands, flood damage, and decimation of fragile ecosystems.

Irrigated agriculture, which went from a few thousand acres in 1850 to over 1.4 million (a number that would rise to over 7 million by the mid-20th century), sucked streams dry and aquifers too, especially after the arrival of gasoline-powered pumps in the 1890s and early 1900s.

As bad as that was, mining—particularly the hydraulic variant—was fast destroying California’s waterways by the 1860s and 70s. The scars of this industry still mark the morphology of rivers today, as well as the mercury tailings from the processing. In one of the country’s early environmental rulings by a high court, the 9th Federal Circuit Court put a stop to hydraulicking in 1884 on the grounds that its operations inevitably damaged the property of others and practically destroyed the navigability of the Sacramento and Feather rivers.

The ruling on hydraulicking was one of the most important things the 9th Circuit would ever do. But it remained something of an exception in its era. A great deal of what happened in the years of rapid-fire expansion of use in the 19th and early 20th century happened without much effective government oversight of water. What got built was built with private money. The claims that were made to use rights of water were done through claims to prior right (i.e. the first to the river), and conflicts were solved at best through costly litigation that usually entailed among well-to-do individuals and well-placed mutual companies.  

Add to this all the other uses to which rivers and surface waters were being put—fishing, navigation, hunting, gathering,  There was also hydropower, domestic water service for cities and towns.

I bring up this seemingly ancient history because it actually matters a lot to what is and is not possible today in terms of water reform. In one hundred years, there have been innumerable changes in the management of water to be sure. We have seen a proliferation of agencies at federal, state, and regional levels. Court rulings have also greatly refined the meaning and place of various bodies of law, including common law, appropriations law, ideas of the public trust, and notions of “mutual prescription” (i.e. the idea that water users whose collective use is destroying a common source of water are to be held mutually responsible by the courts for the remediation of harmful practices).

We are also now at the centennial mark for the Water Commission Act of 1914, which established the overarching framework for a California water state (including water boards and water licensing). But much of this state was not put in place to erase and re-build everything that had come beforehand, but instead was layered on top of many thousands of already-existing arrangements.

Even more important, the overriding principles at work for California waters in the 19th century and remain today boiled down to the following state directives about what the government was to do:

  1. Facilitate economic growth and rapid population expansion by using technology and regulation to overcome any obstacles presented by the relative scarcity of water;

  2. Move water from where it was abundant to where populations were growing;

  3. Work around already-established water rights of a host of 19th  and early 20th century appropriators, even where their activities had overtaxed the capacity of surface waters and basins to supply their activities.

The stair-step reconfiguration of California’s waterways has served these very goals. The Central Valley Project was meant to compensate for the rapid depletion of aquifers in the San Joaquin and Sacramento Valleys. The giant—perhaps even grandiose—water-moving projects of the Los Angeles Department of Water and Power and the Metropolitan Water District, including the Owens Valley/Los Angeles Aqueduct, Parker Dam, the Colorado River Aqueduct and then finally California’s State Water Project were brought into being to accommodate and encourage growth in arid southern California.

The ideology of water agencies as the handmaids to growth was put in place by a state that gave water agencies a charge of protecting water supplies, even balancing uses, but giving them ultimately no power to participate in land use planning.

Water agencies--- as skilled as many of them are—are problem solvers. Their charge is now and always has been: Given unlimited growth, what is the least bad option for California?

This has set up a host of dilemmas that at least since the 1870s have produced urgent and repeated calls for thorough-going reform in water. They include but are by no means limited to the following questions:

  • How do we stop the loss of fisheries and wetlands to exploding water markets in big cities?

  • How do we stop the overdraft of groundwater supplies in basins that have not been adjudicated by the courts?

  • What do we do about the seismic hazard looming over the state’s delta conveyance system?

  • How do we deal with a toxic legacy of the state’s mining, manufacturing, agribusiness and military industries that have left plumes of contamination in surface and ground-waters?

  • How do we deal with questions of reasonable and beneficial use when looking at clashes between different kinds of uses—say, agriculture for the country’s produce markets, water for new homes, and marshland and delta recreation and wildlife reserve areas for quality of life?

  • How do we deal with perverse incentives for over-use of water built into the idea of “use” as the standard for a water right?

Can a state government charged with facilitating growth and respecting long-time users and moving water from where it’s plentiful to where people want to live in large number actually achieve water reform for a hotter, dryer 21st Century?

At present, no.  And I don’t mean that in any apocalyptic sense. But I mean it in  the most honest way of saying that there’s no great solution imminent for the California water state. We’re not about to give the Water Boards the kind of land-use power that we gave once, miraculously, to the Coastal Commission, which can actually just say no to most development on the coast.

Absent a water czar and a revolution, I predict that California will muddle through.  As acrimonious as water battles are in the larger sense, our experience in living with conflict and abiding by court orders is pretty good. Some of it will just be settled by weather and location and the luck of individual water districts.   Some of it will be a little bit funny, when new golf courses just dry up and go back to being desert. Some of it will be anguishing, as farm workers without work are left to seek livelihoods in even more marginal pursuits if that is possible. And some of it will just be technical and expensive, as we turn to more recycling, more storm-water capture, with more bond levies and more taxes.

But what can be said is that, in an environment where comprehensive solutions are impossible to forge at top levels, creativity and informed action at local and regional levels is likely to become all the more important. And where people can avoid costly litigation and seek platforms for multiple and mutually compatible uses such as:

  • restored wetlands that provide open space, habitat, recreation, and water filtration

  • tax codes or water rate structures that incentivize the conversion of lawns to native and drought-tolerant plants

  • flood control structures that provide filtration, natural river banks, and shade cover of cottonwoods and alders

there will be low-lying fruit to be harvested.

Where solutions can be replicated and/or adapted to new places and situations, it may be that grander alliances capable of taking on bigger issues and bigger users, including cotton fiefdoms or almond empires in the Central Valley or the Imperial Valley, then even more be achieved.

If my conclusions today are depressing, I apologize. If they’re incorrect, I’ll be delighted.

I wish to thank you again for the invitation to participate in this very important conference.

© Heather Williams, 2014