Delta Deal with Farmers Dodges Showdown over Senior Water Rights―for Now

Monday, May 25, 2015

Farmers in the Delta area who struck a deal with California regulators over their senior water rights on Friday won’t save the state a lot of water, but may help edge it toward a more coherent and effective water policy. 

So far, the deal affects only about 1,000 farmers with riparian water rights—direct access to running water in streams and rivers. With battle lines being drawn up and down the state over who gets to quench their thirst in the age of drought, some growers reached an agreement to at least delay a fight with California officials.

In exchange for farmers fallowing 25% of their fields or using 25% less water, the state agrees not to do the unthinkable and challenge their senior water rights before the growing season is over. Not every farmer in the area is expected to sign up for the deal, so that fight might still be coming if the state tries to cut them back―or off.

“There will be litigation,” State Water Resources Control Board Chair Felicia Marcus told the Sacramento Bee. “That’s a certainty.” Growers have until June 1 to decide whether to participate.

It’s possible the deal will inspire similar agreements elsewhere in the Sacramento and San Joaquin river basins. Farmers account for around 80% of water use in California and the state has historically lacked control over a good many of them.

Associated Press explained why that is so in an introduction to its database of California riparian and senior rights holders. “Nineteenth-century laws allow nearly 4,000 companies, farms and other water rights holders to use an unmonitored amount of water for free―and in some cases, to sell what they don't need.”

AP said the state counts 15,759 senior and riparian rights holders, compared to 13,116 junior rights holders. Juniors are pretty much folks who got access to water after 1914; the rest are seniors. The state has historically messed with juniors in times of drought and have already rationed, and in some cases cut off, their water recently. That’s legal.

But senior water rights folks don’t get messed with, and that’s causing some hard feelings. Those feelings will probably grow a bit harder as the public reads more about California’s weirdly complex, corporate-dominated water administration while gazing forlornly at their newly-crisped brown lawns.

Michael Kinsley once said the scandal isn’t what’s done illegally; the scandal is what is legal. California’s water history of never-ending wars and deceit may be most scandalized by the pre-eminent legal position of senior rights holders, established through more than a century of wheeling and dealing.

Legislatively reshaping California’s water policy is not an undertaking for the faint of heart. And it’s not the sort of thing government seems to do well these days. The judicial challenge makes it all that much more improbable.

So, there appears to be a good bit of optimism in the media and political circles that the move by Delta farmers signals that some sort of framework can be established for dealing with senior water rights, without actually doing that in any structural way. An extended drought may make that difficult to sustain.

–Ken Broder


To Learn More:

California Drought: State Accepts Farmers’ Deal on Water Cuts (by Kurtis Alexander, San Francisco Chronicle)

California Accepts Drought Water Deal with Delta Farmers (by Dale Kasler and Phillip Reese, Sacramento Bee)

Farmers Agree to Water Cuts in California (by Jennifer Medina, New York Times)

Water Agency Approves Farmers' Voluntary Water Reduction Plan (by Monte Morin, Los Angeles Times)

California Water Board Approves Voluntary Cutback Program by Growers (by Dan Whitcomb, Reuters)

Brown Announces Mandatory Water Cuts for Urban Users; Mentions Farmers in Passing (by Ken Broder, AllGov California)

A Primer on California Water Rights (by Gary W. Sawyers) (pdf)

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