Water

by JanieM

Michael Cain bait: a discussion at BJ of water rights out west.

Unfortunately, the conversastion is scattered in a comment thread, but the comment I linked links backward, and in any case, Michael, I suspect you don't need BJ people to help shed some light on this issue for us.

I found it interesting that the discussion of Colorado River water didn't even bother to mention Mexico, I suppose because it has been so long since the Colorado brought any water that far that it's irrelevant. (I'd never dream of ascribing the omission to US-centrism....)

On the one hand, in posting this I'm thinking: as if we don't have enough to worry about! On the other hand, everything is connected: water, crops, laws, immigrants, labor, states' rights, international relations.....

Comments

[Pete]

Aww, man. Are you really gonna make me go over there?
;-)

[JanieM]

@Pete -- nah, just wait for Michael to show up. :-)

Or just read the one comment I linked -- Martin is one of the very sober ones over there, I always enjoy his comments, which are never snarky or mean.

[JanieM]

Or particularly political.

[Girl from the North Country]

If there were water
And no rock
If there were rock
And also water
And water
A spring
A pool among the rock
If there were the sound of water only
Not the cicada
And dry grass singing
But sound of water over a rock
Where the hermit-thrush sings in the pine trees
Drip drop drip drop drop drop drop
But there is no water

Water wars throughout the world are going to be one of the main stories of the 21st Century. As well as: floods.

[wj]

I could see Arizona (which already has towns without water) deciding to ditch the current allocations and just divert all of the water that reaches it to themselves. I could even see a Republican candidate for Governor running on a platform of doing exactly that.

Could they find a Federalist judge to agree that the Federal government has no authority to divvy up water? Sure. (And this Supreme Court would back that.)

But California, if we are smart, wouldn't make a case on that basis. Instead, we would go with straight breach of contract -- Arizona signed the Colorado River Compact, so it is bound by it. Far harder to get a Federalist judge to embrace breach of contract -- too many of their donors are rich people for whom enforceable contracts are critical to maintaining their wealth.

[Michael Cain]

Could they find a Federalist judge to agree that the Federal government has no authority to divvy up water? Sure. (And this Supreme Court would back that.)

This is incorrect on many levels. (And the discussion at BJ also gets it wrong.) The SCOTUS has original jurisdiction, and is the only court in which one state can sue another -- no court shopping. Resolving such cases can take a long time. One of the cases I'm keeping an eye on occasionally is Texas v. New Mexico and Colorado*. It was filed in 2014, and is on its third SCOTUS-appointed Special Master. The feds don't generally "divvy up" water between states. More common are interstate water compacts, although there are some SCOTUS decrees. Compacts have to be approved by Congress**, but the federal government is seldom a signatory to those compacts, except when a foreign country is involved. The SCOTUS has long held that by virtue of its ownership of the western public lands, the federal government has senior rights to all the water if it chooses to exercise them***. This is one of the reasons for the historical bad relationship between western states and federal agencies like the USFS and BLM. All western states' water law is complicated. California's is by far the worst, since it recognizes rights under multiple legal jurisdictions going back to the original Spanish missions.

* Texas has asked the Court to make a ruling that would require a lot of western states to make fundamental changes in their water law. They want the Court to address the question of whether pumping water from an aquifer that is hydrologically linked to a river is a withdrawal from the river. The engineering answer to that question has always been, "Yes, with a multiplier between zero and one." The legal answer has always been "No."

** When I worked for the state legislature, and the subject of water compacts came up, at least one member would always ask, "Why do Congress critters from California and Massachusetts have any say in how Colorado and Nebraska divvy up the water in the South Platte River?" The answer is because the Compacts Clause in the Constitution says so.

*** The Dept of Energy, NuScale, and a group of regional utility companies are moving forward towards construction of a small modular reactor nuclear power station on federal land at the Idaho National Lab. The original plan for cooling the steam cycle that actually generates the electricity was for DOE to exercise those rights and divert water from the Snake River, depriving other rights holders. This made them a lot of enemies. NuScale has changed the design to use air cooling, even though it makes the plant less efficient and increases the cost of the electricity it will generate.

[Michael Cain]

On the other hand, everything is connected: water, crops, laws, immigrants, labor, states' rights, international relations.....

You left out electricity. The largest single category of surface water diversions in the US is cooling for electric generating plants. Some of those diversions are consumptive -- the water is evaporated and not returned to its source. Some are pass-through -- the water absorbs heat from the plant and is returned to the source. Both can cause environmental problems.

Texas is having a serious drought and is looking at probable ongoing heat waves this summer. The last time that happened, limits on the cooling water for the pair of nuclear plants outside Dallas required them to reduce their output, and there was discussion of having to shut them down completely.

[wj]

This is incorrect on many levels. (And the discussion at BJ also gets it wrong.) The SCOTUS has original jurisdiction, and is the only court in which one state can sue another -- no court shopping.

Quite. But are the states (or state agencies) the ones actually pumping the water? (Seriously. I have no idea -- although there are at least some cases in California where it is a utility doing so.) If not, we could be looking at a state suing a utility. Or a utility (e.g. the Metropolitan Water District of Southern California) suing an upstream state. Or even one utility suing another. Which might leave some flexibility.

[JanieM]

You left out electricity.

It was covered under dot dot dot.... ;-)

But seriously, thank you for the comments -- I'm learning a lot. Not for the first time, I will point out that you could do an actual post from time to time. Just say the word!

[Michael Cain]

But are the states (or state agencies) the ones actually pumping the water? (Seriously. I have no idea -- although there are at least some cases in California where it is a utility doing so.)

My opinion, based on limited and informal observation, is that there is enough measuring, reporting, and auditing so there's little question about how much water is pumped/diverted. The cases aren't someone taking 10,000 acre-feet they know they're not entitled to because they think they can get away with it. They take it because they can advance some legal theory about why the laws and regulations make the diversion legal.

Denver Water built a new reservoir complex downstream of the city. Historically, DW has had to meet downstream water calls by opening the mountain dams above the city. Now, most of those calls are met by pumping water from the new reservoir into the river. There is some interesting accounting about which water DW is using in those reservoirs, that was eventually upheld -- that is, the diversion into those reservoirs was legal.

[wj]

One thing we can all agree on is that water in the West is a horrible mess currently. And getting worse rapidly.

With nobody having any bright ideas about how to even begin to address the situation. About the closest anyone comes are DOA proposals to block building any further housing or other new demands.

[CharlesWT]

With nobody having any bright ideas about how to even begin to address the situation that are politically viable.

FIFY

[wj]

But how, Charles? How?

(And no, just saying "Get government out" is not a solution. As always, the devil is in the details. Including how you get water to all the existing users to whom there are commitments.)

[Michael Cain]

With nobody having any bright ideas about how to even begin to address the situation. About the closest anyone comes are DOA proposals to block building any further housing or other new demands.

Here's an idea: quit giving water away free to low-value agriculture. On the order of 40% of water diversions in Colorado -- that's much more than the cities and suburbs consume -- is used to grow corn to feed the ethanol plants. Arizona grows cotton in the desert. California grows large amounts of alfalfa to ship to China.

[CharlesWT]

This article has some policy examples that could help ameliorate the water shortages in California that appear not to be politically viable.

"Consider this amazing statistic from our even-drier neighbor. Arizona uses less water overall than it did in the 1950s, when the population was one-seventh its current level. Californians usually meet the state's increasingly aggressive conservation targets, but our individual efforts inevitably run into the concept of "diminishing returns."

Nearly 50 percent of the state's available water flows to the Pacific, 40 percent goes to farms and 10 percent goes to urban users. Residences use 5.7 percent of the state's water, with half of that going to pools and landscaping. Conservation is a good idea during times of scarcity. But why are environmentalists and regulators fixated on squeezing more drops from those who use the least?
...
The commission's executive director said its rejection "does not mean that we're setting the stage for the denial of all desal facilities or other critical infrastructures across the state," but in reality it's the end of desalination in California. Who is going to spend 20 years developing a project only to meet this fate?

California needs to build appropriate water-storage facilities to capture more water during rainy years (and, yes, we'll have rainy years again), improve water trading and pricing, and build recycling and desalination plants. We're not going to do desalination now obviously, we're not fixing the pricing situation and we're not building water-storage facilities."
California's Water Bureaucrats Are Making a Bad Drought Worse: Fifty percent of the state's water flows to the Pacific Ocean. Another 40 percent is used for agriculture. But it's average residents who are being forced to cut back.

[wj]

Here's an idea: quit giving water away free to low-value agriculture.

That's definitely going to have to be part of the solution -- although it may not stop at "low value" agriculture. Personally, I'd focus on high water, rather than low value, agriculture. (First target: almonds!)

But my sense is that, at the moment, it is politically DOA in the state legislatures. That may (must) change. But it will likely require the states to accept that they must invoke eminent domain to buy the farms to shut them down.

[wj]

Fifty percent of the state's water flows to the Pacific Ocean

It might be enlightening to look at the San Juaquin River. Of course, you have to go upstream. Because before it gets to the sea it is gone. That's right, bare river bed. Always in summer, and increasingly year around.

Sure, there's lots of water running into the Pacific. IF you look at all the rain from the north west of the state which flows from the Coast Range to the sea. But it's nowhere near where the demand is, and there are serious geographic issues (i.e. mountains) in the way of getting it there.

[JanieM]

Fifty percent of the state's water flows to the Pacific Ocean.

Um....so....part of the answer to our water problems is to make sure rivers don't flow to the sea anymore? We should...shut down the water cycle on the planet?

Sounds promising.

[wj]

so....part of the answer to our water problems is to make sure rivers don't flow to the sea anymore? We should...shut down the water cycle on the planet?

Folks who like salmon might alsp take exception. Although enough water has already been diverted from the rivers where they spawn that it might be a moot point before too long.

[nous]

The Poseidon desalination plant that got rejected (mentioned in CharlesWT's article above) would have returned 50% of the salt to the coastal waters off of Huntington Beach, which would have been a big problem for the Bolsa Chica Ecological Preserve just five miles up the coast. The plant's development plan violated the California Coastal Act and the commission wasn't going to waive that, especially with the preserve already impacted by the recent oil spill offshore and struggling to recover.

The restrictions on the farmers in the central valley aren't for diverting water, they are for pumping groundwater. Take too much too quickly and the groundwater becomes too salty to use. Our CSA farmer is always reporting about their water stewardship aimed to keep their wells fresh. This is why I think wj has the right of it with discouraging water intensive crops whatever the value they yield in the current market. That value is being leased from future needs.

[dmbeaster]

As someone who has studied and followed water policy in California for 40 years, the article cited by CharlesWT is really bad.

Others have already pointed out the inanity of the point about how rivers run to the ocean, and unless you stop all rivers, a great deal of water flows to the ocean. Also, most of that flows either from northern rivers that cannot be diverted south due to mountains, or from southern rivers that only run in flood stage for a short time in Southern California. There is no good way to store most of it (a good chunk of it is stored nonetheless).

As for storage, the amount of storage has increased ten fold since the last major drought in the late 80s-early 90s. Storage is not a problem whatsoever. Existing capacity can store years of water, which we are currently drawing down enormously due to historic drought. Storage cannot possibly cure a drought of this character.

Desalinization is a non-starter in terms of cost. The cost is $2,100 per acre foot (not including the huge capital cost to build the plants). Current costs are all over the place, but resales of water are never over $1,000 in peak demand. Agricultural users (which own their water rights) typically pay under $50 per acre foot to their water districts.