Public Trust and Water

Carolee KriegerJuly 12, 2015

Santa Barbara News Press Public Trust and Water

The drought has thrown California into chaos. The Brown administration's short-term response has been inadequate at best, focusing on a 25 percent cut for urban users, but blandly ignoring agriculture, which gulps 80 percent of the state's developed water while contributing only 2 percent to the Gross Domestic Product. Meanwhile, the only long-term plan the governor has offered for mitigating the crisis is the Twin Tunnels, a white elephant conveyance project that will soak ratepayers for up to $67 billion, destroy the Sacramento/San Joaquin Delta, but yield no new water.

The fact that we even find ourselves in this situation says a lot — none of it flattering — about both human shortsightedness and political incompetence. It's not that we haven't had plenty of time to prepare for catastrophic water shortages. The devastating droughts of the late 1970s and the early 1990s remain vivid in institutional memory. Further, state records show that 45 of the last 100 years have been characterized by drought, some of them lasting multiple years. California is a semi-arid state, and the quantity of available water has always been limited by the amount of snow that accumulates in the western Sierra, the Trinity/Salmon Mountains, and the southern Cascade Range. In a typical year, that amounts to about 30 million acre-feet.

That's a lot of water, more than enough for our urban populations, commerce, and sustainable agriculture. But, as noted, the problem is that agriculture — unsustainable agriculture, Big Agriculture — takes the lion's share. Western San Joaquin Valley corporate agriculture receives water at deeply discounted rates from state and federal government projects, then either uses it to grow luxury crops such as almonds for export — or sells it at inflated prices to urban water districts. Further, many of these crops are grown on land that has poor drainage and is laced with toxic selenium, resulting in the discharge of contaminated runoff to San Joaquin Valley waterways and aquifers, threatening human health, fish and wildlife from Fresno to San Francisco Bay.

How, you may ask, did a handful of absentee corporate farmers get such power (and so much water)? It's the usual answer, of course: Follow the money. There's a long trail of dollars, reaching back to the 1930s, when the federal and state governments were beating the water development drum, and Big Ag jumped on the bandwagon, contributing lavishly to politicians willing (so to speak) to carry their water. Now jump ahead 80 years. Corporate agriculture remains a potent presence in both Sacramento and Washington. It is no coincidence that the few true beneficiaries of Jerry Brown's Twin Tunnels are the megafarms of the western San Joaquin Valley; the project would assure these gigantic enterprises even greater control over the diminishing supplies that do exist. Nor is it a coincidence that the U.S. Bureau of Reclamation, which controls the federal Central Valley Project, reflexively adjusts its policies to accommodate the whims of its biggest contractors, who are ñ you guessed it ñ San Joaquin Valley irrigators.

But there's a more fundamental problem than San Joaquin Valley agribusiness: The difference between water's legal status and its utilization in the real world. Both the California Constitution and the landmark legal case National Audubon Society v. Superior Court (which saved Mono Lake from excessive water exports by Los Angeles) confirm that surface water is a public trust resource. In other words, it is a resource that is owned by the public at large, and the government is obliged to maintain its availability for reasonable use by all citizens. A recent court ruling for the Scott River extended the public trust doctrine to groundwater as well. This means that government must ensure our water is not used in a wasteful or extravagant fashion, especially during drought. It means enforcing water quality standards, so waterways and aquifers are not contaminated. It means distributing water in an equitable fashion, so urban consumers, fisheries, the environment, and sustainable agriculture receive their fair share.

Of course, what "should be" and what "is" are two different things. It's hardly a surprise, but politics trumps legality in California water policy. A three-year research project conducted by the California Water Impact Network and UC Davis determined that the State Water Resources Control Board has granted water rights totaling more than five times the amount of water than exists in our rivers and streams.

That means, drought or no drought, California is always in a water crisis. It means there will never be enough water to satisfy all demands. And we are always digging the hole deeper. Year in and year out, regardless of precipitation levels, regardless of the status of our reservoirs and aquifers, new housing tracts are approved, and the expansion of water-intensive crops such as almonds and pistachios continues unabated.

The drought is a geophysical phenomenon, but most of California's water woes can be attributed to mismanagement. Even in the worst of circumstances, we have enough water to not merely survive, but thrive. There is water enough for all, but not enough to waste — and certainly not enough for monopolistic and predatory corporate seizures.

There are technical responses to the drought that would restore stability, resilience, and fairness to the management of our water supplies. I will discuss these options in future articles. But first, we must invoke the public trust doctrine in the framing of all future water policies. We must insist that our representatives conform to the law, not the pressures and blandishments of corporate agriculture.