Calif. water districts, facing catastrophe, defy federal order to release water for fish

Calif. water districts, facing catastrophe, defy federal order to release water for fish
How low can it go? Water dangerously low at the New Melones Lake Reservoir in Central California, Aug 2014. (Image via analoggirlworld.com)

The California water battles are heating up.  Carly Fiorina came out swinging this week on the source of the problem: misguided “environmental” policies.  Victor Davis Hanson, a Central Valley farmer who is on the front lines of this war, weighed in with a pointed op-ed in City Journal making similar points.  Prominent voices are making themselves heard.

So are the less-prominent ones.  On Monday, two small rural water districts in Central California retained legal counsel and told the federal Bureau of Reclamation (USBR) that they wouldn’t release on schedule a 15,000 acre-foot “pulse” of water from their severely depleted reservoir.

The “pulse” release, which raises the level and current of the Stanislaus River, is intended to assist a specific fish in its annual migration.

The problem the water districts face has two main dimensions.  One is physical: if they release the water now, without assurances as to “whose” water they are releasing, there is a stark and very real likelihood that by 30 September 2015, their reservoir will be drained to below the level of the outflow openings – with no guarantee of replenishment from another source.

That would leave all their customers without water until precipitation brings enough to top the outflow level again.  In essence, asking the two districts to release this “pulse” without guarantees is like asking them to jump out of a plane without a parachute.

Map 1.  The California water system. (Source: CA Dept of Water Resources, California Water Plan. 2013)
Map 1. The California water system. (Source: CA Dept of Water Resources, California Water Plan. 2013)

The other dimension is, precisely, the identification of water-rights seniority, which would govern “whose” water is being used for the Stanislaus River “pulse.”  The question hangs in the balance at the moment, in part simply because the drought has prompted the state of California, along with the area’s congressmen, to step in and assert a negotiating role.

It’s also because the two water districts – the Oakdale Irrigation District (OID) and the South San Joaquin Irrigation District (SSJID) – have requested a temporary adjustment to the environmental water releases ordered by USBR, while the drought has water supplies so dangerously low.

If the pulse scheduled for this week had started on time, it would have been the second pulse this spring.  The first one, in March, also involved releasing 15,000 acre-feet of water from the New Melones reservoir.  The two pulses together would flush 30,000 acre-feet away for good (into the Pacific Ocean), leaving the water districts with too little for the rest of the water year.

Map 2.  Central (San Joaquin) Valley setting of the two water districts. (Google map; author annotation)
Map 2. Central (San Joaquin) Valley setting of the two water districts. (Google map; author annotation)

As noted by the Manteca Bulletin, that 30,000 acre-feet would serve the needs of nearly 349,000 average California users for a year.

Before proceeding, it’s worth mentioning the number of fish we’re talking about.  According to the National Marine Fisheries Service, the steelhead trout population requiring the pulse assist averages 29 a year (see last link).  The Manteca Bulletin does some math to put the second pulse of 2015 in perspective:

[A]n email [from] Sunny Snider of the federal fish protection agency…indicated a previous pulse flow in March…had moved out 76 percent of the out-migrating steelhead by March 30. …

That means there are six steelhead left that the Bureau ordered South San Joaquin Irrigation District and Oakdale Irrigation District to release water this week to help on their journey.

Numbers like this certainly prompt the question why some of these trout can’t be put in a hatchery somewhere – if the point is to ensure their survival – and be resettled to the Stanislaus when there’s more water to go around.  Why is it so important to try to keep their conditions from changing, when nature itself is causing them to?

That’s one of many questions surrounding the California drought.

(Speaking of “six fish,” incidentally, the notorious Delta smelt was down to a spring count of six, total, in mid-March.  This after seven years of having court-ordered water-rights seniority.)

Putting the humans last in the “ecosystem”?

Ben Shapiro highlighted, in his post on Tuesday, the complaint of California Congressman Tom McClintock (R-CA4) about the spring pulse releases in 2014.  (McClintock represents voters in the OID and SSJID water districts.)  The pulses have been going on for some years, since the practice of such species-focused management ramped up in the Clinton administration.

The choices confronting OID and SSJID put a face on what it looks like, from ground level, to favor “fish” over people.  It amounts to more than favoring fish.  The whole approach is an example of (a) trying to “manage an ecosystem,” and (b) focusing obsessively – as politics and bureaucracy dictate – on the conditions for one thing in it.

It’s legitimate to ask, in fact, whether we have harmed things other than people, with the focus on helping trout and salmon surge through the rivers that feed the Delta.

The steelhead trout:  a seriously awesome fish.
The steelhead trout: a seriously awesome fish.

California is subject to frequent droughts, after all.  The trout and salmon are no strangers to them.

We have no record of what the fish did in the even worse drought California suffered some 1,200 years ago.  But we know from our study of nature that species migrate, and flourish in one place and die out in another, with or without the help of man.

There is no such thing as stasis for the natural world: no such favored principle or imperative in its make-up.  It’s humans who put a premium on stasis, and knock themselves out trying to institute it artificially.

Can we really preserve an “ecosystem” in amber — or can we, at best, prioritize things in it, which we will try to husband or cultivate for our own use and enjoyment?

Philosophy hovers over this whole issue like the Goodyear blimp.  How we handle drought ultimately exposes how we feel about the facts of existence and the moral meaning of our fellow men.

Regarding the latter, Ben Shapiro points out that Governor Jerry Brown seems pretty cranky and high-handed about his fellow Californians in this hour.  “Fired up about nailing his citizens to the wall” is how Shapiro puts it.

Meanwhile, the Bureau of Reclamation, arm of the federal bureaucracy, demands pulse releases on autopilot from the local water supplies.  Where is the federal official with some moral compunction, the official who will acknowledge that people need to know where their water will come from a few months from now?

Front-row seats for “resource management”

There are two interesting, and telling, sidelights to the OID/SSJID tale.  Together, they highlight one of the most important questions of political philosophy we face today.  That question is what our basis should be, as a society, for managing natural resources, and – to the extent we’re actually able to (which should not be overestimated) – the conditions of our natural environment.

Let me briefly lay out the two sidelights.  One relates to the concept of water-rights seniority.  In part because this seniority principle tends to favor stakeholders at the local level, I like it, and don’t want to see it undermined.  It helps enable small farmers to stay in business and leaves local agencies with the senior vote on what happens to their water.

In many cases, like those of OID and SSJID, senior water rights derive not only from longevity but from investment.  This editorial from the Turlock Journal points out that property owners in the OID and SSJID districts were the ones who paid to build the Melones reservoir system, with dams constructed in the 1920s and 1950s.

The farmers and people of the SSJID and OID have never asked for a free ride or accepted a penny from the state or federal government to develop their water.

Property owners in both districts put everything on the line in 1909 to buy water rights and build the Goodwin Dam.

They risked everything again in 1925 to build Melones Dam.

And while water helped the people of SSJID and OID prosper, the bonds for the two projects took their toll. During the Depression, a number of farmers and others within the district couldn’t pay their taxes and lost their property to foreclosure. …

When the federal government wanted to build a reservoir on the Stanislaus River as part of their Central Valley Water Project, they negotiated with the two districts in [sic] inundate Melones Reservoir. Not only did the subsequent deal respect the fact the two districts held senior water rights to the Stanislaus River watershed but it also set in place clear language that the first 600,000 acre feet of inflow each year belonged to the two districts.

That first 600,000 is still the official allotment for OID and SSJID, although this year, the two districts have agreed, because of the drought, to accept a reduced allotment of 450,000 acre-feet.  (What’s not clear is whether they will get even that.)

Old Melones Dam, built by the property-owners of the SSJID/OID districst in the 1920s and still in use.  (Image via Oakdale Leader)
Old Melones Dam, built by the property-owners of the SSJID/OID districts in the 1920s and still in use. (Image via Oakdale Leader)

The bottom line is that the local property owners of the area built the infrastructure that they and the federal government now use.  They can’t be considered non-paying beneficiaries of government projects.

The second sidelight is an initiative by the two districts to make water that they have rights over available to other buyers.  The scheme would entail farmers in their districts being paid to voluntarily fallow some of their fields – i.e., not use the water they would normally use – and the two districts selling that water to especially parched districts elsewhere (e.g., further west in the Central Valley).

The parched districts would benefit from being able to buy water, and OID and SSJID would be able to pay off the farmers and still earn a profit that they could reinvest in their own infrastructure – and thereby realize significant water savings in the future.

(I note that this scheme depends on a favorable resolution to the urgent question of the second spring pulse for the Stanislaus River trout.  Only if the two districts have the guarantee they’re seeking, and the water they’re planning on, can they carry this scheme out.)

The problem they’ve run into is that the California Department of Water Resources is determined to exercise a centralized veto over all such proposals.  Such once-common deals are being prohibited in 2015.  There is now to be no local initiative in this regard.

Based on the DWR’s so-called “white paper” [a new version put out in 2015] — rules the agency devised that do not carry the weight of law as they were never passed by the legislature or signed by the governor —such a deal would not constitute a beneficial use of water.  As such, that water must be forfeited to the state.

(The DWR White Paper is here.)

So many principles of governance in play

We could go on for hours trying to get our minds around all of this.  What I want to do is bring just a handful of things into focus.

The first is that the reason this slice of “property rights versus state authority” has come up, so close in time to the Bundy Ranch issue of last spring, is that in our current decade, two philosophies of land management are really starting to collide.

The difference between the two philosophies is the second thing I want to bring into focus.  One philosophy is the old common-law view of property rights, resource rights, and local sovereignty.

The senior pundits of the rightosphere were very disdainful of Cliven Bundy in 2014, but – although I don’t necessarily think he got everything right – Bundy expressed pretty accurately the basis on which property and resource rights were universally understood to be formulated in the United States, up until the late 1960s.

One thing that’s important about that is that there are still many property owners whose rights have been vested in them on that basis.  Another is that the courts have continued to interpret property and resource rights under those longstanding common-law principles, which were never formally renounced by any instrument of the United States government.  Even the Environmental Protection Act, for example, was written to acknowledge and respect the original basis on which property rights were vested in the U.S.

Our legacy conservative leadership is virtually all urbanized today, and quite as ignorant about common-law property rights as any other city boy or girl.  Well-intentioned as they may be, they take too much for granted.  They don’t have a visceral understanding of how real people are affected by the other philosophy of land management: the one favored by the left, which has slowly become the baseline mental image of the average urbanite.

The left’s philosophy is now, explicitly, one of “large landscape management,” which ultimately wants to assume away property rights.  It wants, for the near term, to make them far more conditional and subordinate than they are under common-law principles, which would be fatal to the very concept of them as “rights.”

The third thing I want to bring into focus is that this collision of philosophies is occurring because vast bureaucracies have been chartered to administer regulations.  It’s not because Congress ever decided to rewrite the basis for vesting property rights in America.  It’s because a collision was set up, several decades ago, by creating government agencies and then letting them fill up with left-wing ideologues.

The Stanislaus River wends its way through Oakdale, CA.  (Image: stanislausriver.com)
The Stanislaus River wends its way through Oakdale, CA. (Image: stanislausriver.com)

The clash happens mostly in small, local dramas like those of OID and SSJID, facing demands and vetoes from state and federal bureaucracies.  The plight of the two water districts in the California drought provides perfect illustrations of things that are wrong in how we “do” government today.

There are multiple stakeholders

One of the chief lessons we should take is that there are, in fact, legitimate interests competing here.  There’s nothing wrong with wanting the steelhead trout or the Delta salmon to survive in a drought.  Nor is it inherently illegitimate for the California DWR to foresee a need to arbitrate among all the water users in the state in a time of shortage.

But we’ve gotten way out of balance in our approach, largely through giving regulatory agencies too broad and vague a charter.  Having the agencies in place excuses us from thinking intelligently about how law and regulation really work:  i.e., bluntly and punitively.  We’ve fallen into a slothful habit of magical thinking about government regulation, as if it really can “manage ecosystems” on a large-landscape basis, “objectively,” benignly, and with perfect knowledge.

The OID and SSJID saga is a wonderful example of how that’s not true at all.  All regulators are is a bunch of people like the rest of us, with limited vision and subjective intentions.  And one of their biggest drawbacks is that they never have to bear the cost of the decisions they make.

These are lessons about government and regulation that mankind has learned over and over.  And these lessons don’t mean that we can’t agree on and enforce corporate obligations to each other in the realm of the land, natural resources, and property rights.

Re-Constitution

But I think they do mean that we are way overdue for a basics-level discussion of government, on the order of our original constitutional convention of 1787-89.

The California drought will eventually end.  But the problem of colliding philosophies for land and resource management isn’t going to go away.  Instead of letting an essentially imperialist philosophy of large-landscape ecosystem management creep up on us, through bureaucracies and “regional planning” documents, we need to confront this issue head-on, from a holistic perspective.

We need to talk turkey about property rights and resource rights, and how to continue respecting them in a technological age in which men’s vision for knowledge and “management” is so much bigger than it used to be.

It won’t do to say that there shall be no vision.  That train has left the station.  But we can state what truths we hold to be self-evident.  And, like our forebears in Philadelphia, we can define and limit, with an explicit eye to upholding the rights of individuals, and restricting the ways government can be used in service of vision.

We will also want, I believe, to refine our definition of the obligations of property owners.  We would do this not only to codify a basic, modernized view of resource stewardship, but to indemnify property owners against things like environmental activists’ current sue-and-settle methods, which create an open-ended vulnerability for property owners.

Instead of letting ideologues use bureaucracies and the courts to redefine a property owner’s obligations at will, we should adopt a national philosophy on these matters.  Then set a wisely constructed baseline, and impose virtually unbreachable limits on adding to it.

Land-and-resource management is just one of the major issues we need a new constitutional convention for.  A list of other issues is something for another time.  But I will add this, before closing: there will be plenty of lawyers and politicians wanting in on such an enterprise.  The people we really need are the Cliven Bundys and OID/SSJID managers.

Final note

Have a look at the distribution of water use in California, according to a DWR document from 2013, which used 2010 as a representative, “average” year.

What you probaby didn't know about water use in California. (Source: CA DWR via norcalwater.org)
What you probaby didn’t know about water use in California. (Source: CA DWR via norcalwater.org)

You’d never know from the news coverage how small a percentage the urban use represents.  (Urban use includes industrial as well as residential.)

There’s nothing wrong with asking users from all categories to cut back, of course.  But angrily attacking residential users for watering their lawns is clearly evidence of an ideological psychosis, given the reality of where the water goes.  Rather obviously, we could stop watering all the lawns in California, and it wouldn’t make much if any difference to any other application – except, perhaps, other residential or industrial uses.

(Image: AP, Jae C. Hong via Breitbart)
(Image: AP, Jae C. Hong via Breitbart)

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J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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