Water, water everywhere, … (updated)

George Rebane

Water, water everywhere, but not a drop is yours.

California’s drought induced by nature and amplified by government has migrated from reasonable discussion to political expedience.  This ongoing problem in our state has drawn much interest from RR readers, especially those living in the Sierra foothills where water is still abundant.

Sacramento and the feds have taken the side of dubious environmental arguments such as the health and happiness of certain fish species, and against the farmers and residents, especially those living in the wetter parts of the state.  After all, the votes are concentrated in the dry parts which must be made the last to feel any shortfall in the wet stuff.

The legal arguments fall into the classical Right/Left pattern as far as regulation and rationing are concerned.  And it all starts with ‘who owns the water?’  The Left applies its classical mantra that all possible resources belong to the people (i.e. the state), and the Right says ownership of water is a complex matter that should be sorted out on an ad hoc basis that tilts heavily toward the maintenance of property rights.  The specifics break down to how/whether flowing surface water should be treated differently from ground (or well) water.

In a previous comment stream, RR reader and advocate for the Left, Mr Steven Frisch, offered the following points of law for us to consider.

CALIFORNIA CONSTITUTION ARTICLE 10 WATER SEC. 2.

It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner’s land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled.  This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.

These from the State Water Resources Code:

102. All water within the State is the property of the people of the State, but the right to the use of water may be acquired by appropriation in the manner provided by law.

103. In the enactment of this code the Legislature does not intend thereby to effect any change in the law relating to water rights.

104. It is hereby declared that the people of the State have a paramount interest in the use of all the water of the State and that the State shall determine what water of the State, surface and underground, can be converted to public use or controlled for public protection.

105. It is hereby declared that the protection of the public interest in the development of the water resources of the State is of vital concern to the people of the State and that the State shall determine in what way the water of the State, both surface and underground, should be developed for the greatest public benefit.

(If readers find additional constitutional or code provisions for the disposition of water in California, please include or point them out in your comments, and I will append them hereunder.)

The first thing to note is that California’s constitution deals only with riparian rights and surface water.  It is moot on ground water and clearly presumes that such water is the sole property of the landowner from which such water is drawn.  Why so?  Well, the framers of this constitution were well aware of water sources, and it would stretch reason to hold that they simply forgot to include ground water with surface water.

However, the much later drafted State Water Resources Code developed by people of a more collectivist mood corrected what to them was the framers’ oversight, and therein explicitly dictate that “All water within the State is the property of the people of the State, …” - a broad statement that clearly should have been in the constitution had its framers wanted to include 'all water in the state'.  And things get dicey from there, winding up where we are now looking at Sacramento bureaucrats telling everyone how much of what water from where and at what cost the water-owning people will be able to buy.  The idea being that it wasn’t yours to begin with, any more than is the air you breathe for which we are working on a separate program of (you can be sure) equitable taxation.

Your making a decision to live in a low density part of the state with plenty of water makes no never mind to our betters.  These folks know how to make sure that whatever water is made available to the people, it will be distributed in a socially just manner.

[update] Just discovered that the WSJ is publishing a piece on California groundwater in its tomorrow's (29aug14?) edition (here).  Below is the graphic filched from the article.

Comments

[Walt]

"The Left applies its classical mantra that all possible resources belong to the people (i.e. the state)"
Where has that been said before? Ah yes... The good ol' USSR.
Back when the USSR was in full glory, "everything" belonged to "the people". From an auto plant, to the forest. Yet "the people" really didn't have access to any of it. ( unless they had good reason, and a permit.)

Someone mentioned "the air". Even that is taxable it seems. All the carbon credits "the state" sells is the place to start. Now where does that money go? Into a "state fund".
That fund, then forks over the money to the high speed train to nowhere.( and other little pet projects) It's " for the people"...
Wait till the low info voter gets hit with that extra "clean air" tax come the first of the year. The same can and will happen to water.

[Todd Juvinall]

I seem to recall that water under your property was considered a "mineral right" so it was handled differently. Like other minerals reserved and bought and sold just like surface lands and the appurtenances on that surface land.

[George Rebane]

ToddJ 537pm - That is a most interesting point Todd. Can you dig out some citations in precedence or code for groundwater being classified as a mineral, and therefore coming under the legalities of mineral rights?

[Walt]

Mineral water?

[Todd Juvinall]

George I will try. I'll ask my well drilling friends at Peters.

[Russ Steele]

The California water issue is going to be with us for next 20-30 years. The amount of rain and snow the state gets is determined by the Pacific Decadal Oscillation or PDO, which is currently in a cool phase. When the PDO is negative or cool the West is Dry. These dry periods are often interspersed with El Niño events, which produce more rain and snow in the Sierra. These El Niño events occur about ever three to seven years, providing drought relief during cool PDOs. However, they will most likely not re-fill our reservoirs to capacity.

This is the best case scenario, the worst case is that the sun spots continue to decline and disappear allowing development of a long tern La Niño Southern Oscillation, cool waters in the Southern Pacific. An extended ENSO would produce very dry conditions across the West. A long term ENSO could also inhibit the El Niños which are critical to replenishing the water in our reservoirs. The result could bring droughts lasting as long 200 years, depending on the length of the next solar grand minimum.

We know from the paleoclimatology records that California has had 200 year long droughts in the last 10,000 years, and it possible to have more of these long term episodes. We also know that California has had some sever floods, that filled the Sacramento Valley like a bathtub with a blocked drain. The last one was in 1861-1862, and from the paleoclimatology records we know these floods happen about every 150 years. We are due! Bottom line, the long term climate is chaotic and we need to adjust. Prepare for the worst!

[Walt]

The ONLY solution is to build dams. But we know how the ECO clan feels about that.
" Pretty" is more important than need. Welcome " wild and scenic". Isn't it great?
For the moment, the "dam destroyers" have piped down. ( don't forget they were calling for Englbright to be torn down)

As I said years ago. " You can't eat or drink "pretty".
Want to take someone's water? Start with Izzy Martian and her gang. Maybe a big thank you letter to Sierra fund for their work.

Next year we won't need dredgers in the streams. They will be so dry, we will be dry digging the creek beds.

[Walt]

Ben.. Eruption has begun in Iceland.

[Walt]

104. It is hereby declared that the people of the State have a paramount interest in the use of all the water of the State and that the State shall determine what water of the State, surface and underground, can be converted to public use or controlled for public protection.

Any thoughts on this?

[fish]

Any thoughts on this?

Yeah...legislators generally write laws like this to benefit themselves and a circle of cronies and supporters while still managing to sound like they are acting in the interests of the citizenry.

[Walt]

Live webcam of the eruption.
It takes a while to connect, then patients is a virtue. Traffic is heavy so it's real choppy.
http://www.livefromiceland.is/webcams/bardarbunga-2/

[Bill Tozer]

Gee Walt, if that volcano goes off the reservation and blows frozen chunks, then we can really say "water! water everywhere." Love it when nature blows chunks....but not in my backyard.

[Fuzz]

George, water isn't like other minerals in terms of mineral rights. Water is necessary for life and groundwater is an increasingly important supply. When water levels drop to the point of severe human impact, then groundwater pumping must be monitored (metered) to control that drop. In the Paso Robles area (from which I came) there is water war going on. That's wine country (basically all irrigated) so you've got big deep ag wells among smaller shallower residential wells. Imagine the ruckus when you have 10 inch PVC pipes and industrial scale wells with 12-inch casings going into a brand new winery right next to a cluster of homes whose wells are already going dry from pumping by the other surrounding wineries. Anecdotally, I've heard that drillers in the area are booked solid and telling residential users not to even bother drilling a new well unless they go down 750 ft. ($30,000) Taking the position...."that water is under MY land and I'm damned well going to pump all I need"....doesn't work anymore. The aquifers have to be managed for basic ongoing human need first, then corporations divie the rest. It may be possible to slowly ween some grape varieties into an unirrigated state. Old vine Zinfandels in the Paso/Templeton area are all dry farmed, though, of course, age has taken their roots are very deep. Whiskey is for drinkin, water is for fightin.

[Russ Steele]

Walt,

After erupting for 3-4 hours, the eruption on Iceland has stopped. Next phase?

[Gregory]

Fuzz, it isn't residential users that are sucking that aquifer dry and there are probably hundreds or thousands of residential wells for every vineyard or winery. People or Pinot, they need to make a choice if the water is scarce.

Doing nothing is choosing Pinot.

[Walt]

Well Russ,, how we going to play this? I did have that gut feeling it was going to pop,, but not quite where it was expected. Does that still count?
Now the problem of all that ice sitting on an empty ( sort of) magma chamber. Something may give there. It won't be pretty if that roof collapses. Now there is word of that rift may be up to something under the ice. ( a nice chain of goffer holes developing)
It sucks that most of the webcams are dark.
BTW, a Northern volcano in that aria is now colored yellow. ( North of the current action)

[fish]

BTW, a Northern volcano in that aria is now colored yellow. ( North of the current action)

Walt...buddy....I love ya...but I got to tell you! It's "area", not aria....an "aria" is a passage in an opera.

From le Wik.....

An aria (Italian: air; plural: arie, or arias in common usage, diminutive form arietta) in music was originally any expressive melody, usually, but not always, performed by a singer. The term became used almost exclusively to describe a self-contained piece for one voice, with or without orchestral accompaniment, normally part of a larger work. The typical context for arias is opera, but vocal arias also feature in oratorios and cantatas, sharing features of the operatic arias of their periods.

[Gregory]

It's a volcano. Sit back, relax and let the fat lady sing.

[George Rebane]

Administrivia - Looking at the volcano thread that has erupted in this comment stream, I guess the old sandbox is again full. Russ Steele does a fine job covering the hot time in Iceland -
http://sierrafoothillcommentary.com/2014/08/28/a-fissure-eruption-has-started-in-iceland/

Perhaps interested readers could take the volcano discussion there, or put it into the new 29aug14 sandbox. I sure would like to focus on water issues in this post (please).

[Gregory]

Back to the water issue... just keeping with the usual law, if Paso R isn't willing to shut down commercial users and letting grape vines die, a fairly standard approach would be to require commercial users who deplete neighboring wells to either fund the neigbor's new small wells, build them a water system using one major well, or stop pumping.

You break it, you buy it. That's what civil courts are for.

Metering every single well in the state (incidentally, the position of Stephen Frisch, the six figure CEO of the wretchedly misnamed Sierra Business Council, the job he scored after driving his restaurant into bankruptcy, misappropriating employee wage tax witholdings as it sank) is overkill and would be tied up in the courts for years.

Just wondering... what states in the USA meter every residential well?

[Walt]

Gov. Brown may be in trouble with the EPA. They don't like his "twin tunnel" water diversion plan. One set of LIBS,, out LIB the other LIBS.
http://www.ocala.com/article/20140829/APN/308299740
Yup,, that Delta Smelt must LIVE!! Even if the rest of the state dies of thirst.
It's pretty much as we have been saying. The FEDS claim ownership of "state" water.

There is one jackass I'm still waiting to hear " no one is out to take your water".
The same clown that said a while back, " No one is going to try and take your guns"..
OH YES THEY DID! We may need those guns to keep our water.( from flowing out to sea.)

[fish]

Posted by: Walt | 29 August 2014 at 01:04 PM

A rare instance when I agree with the federal government. Screw SoCal!

[George Rebane]

For some years now (starting in the 1970s) when California’s water came up for review over a glass of wine (or stronger stuff), I have brought up the prospect of importing water from Oregon and/or the Columbia River. After the usual chortles about the craziness of the idea, we usually got down to a back of the envelope noodling on the costs. The northwest has more water than they can use, and we have the demonstrated technology to bring it into either the Klamath or Sacramento River drainage basin, and then use the Sacramento River to bring it to the delta where existing transport would take over.

The California Aqeuduct is an extremely complex system of pumps and open waterways going from the delta down to soCal’s various reservoirs. It was built in the 1960s spanning a distance of about 450 miles at a cost of $6.3B (which is about $50B today). The Oregon aqueduct would be of similar length but wouldn’t have to be as complex. But it would have to pump the water over higher mountains than the Tehachapis, so let’s make it an easy comparison and say the damn thing would cost somewhere between $50B and, say, $75B to build.

Why couldn’t that be a priority that exceeds the low speed train to nowhere that nobody will ride? We know that the Northwest’s water would be valuable throughout California and be put to good use during the coming years (decades?) which promise to be drier than in the recent past. Apparently people have discussed such an approach, but it has never caught the public’s attention for some reason. Here are a couple of links of past considerations of this idea; one even discussing an undersea pipeline from the Columbia River.
http://www.oregonlive.com/news/oregonian/index.ssf?/base/news/1218263105159940.xml&coll=7
http://articles.latimes.com/1990-05-04/local/me-181_1_columbia-river-water

[Gregory]

George, I doubt the people of Oregon or Washington would be in favor of such a project. They don't want you to move there either; if you vote with your feet and move to where the water is, get new license plates asap.

Here's alternates that are also infeasible... decrease the Owens Valley aqueduct flow over the San Gabriels by one-half, build an aqueduct over the Tehachipis to divert that flow to the lower central valley. Reduce the flow from Hetch Hetchy to San Francisco by one half and divert that to the central valley.

[Al]

For the greater and progressive good, an earth friendly dam will be erected about a half mile below Nevada City.
Said dam will be 500 feet-tall, which would contribute two-trillion acre feet of wanted product in these dire dusty despondent times.

As a result, Ecotourism would also bring green to our area; imagine diving twixt the unreinforced manifest destiny contructs 'mongst the
happy fishes. It's a green-grow gold mine, I tell ya.

As the Climate Chaos worsens, an offstream impound would thence be sensitively-sited just below Grass Valley be fair to the Queen.

Once the phased mitigated projects are approved, the new County Seat is projected to be The Five Mile House since they have demonstrated their multicultural leans and elevated elevation.

At Master Plan, the San Francisco-Golden Gate Dam, as currently centrally-planned, would enhance the environs from from Redding to Bakersfield. This friendly scheme would ensure the wants of the "just" Capitol, Los Angeles, and Mexico, I mean, SoCal.

You can trust that the voluntaries will be amply provided for in new lands and ample safe high green pedestrian-friendly abodes while groking with like-minded folks.
The future belongs for those of vision and you, my friend.