Water rights are a myth

At a recent San Juan Water District (SJWD) Board meeting one of the Board members declared that the district would defend, with a lawsuit if necessary, their pre-1914 water rights to American River water during a period of drought. This board member’s passion that this government agency “owned” water because of a man made dam built during California’s gold rush struck me as pure folly. Water rights are a myth. No one owns the water flowing in a river.

Artificially constructed water rights are a myth

All the discussion about water rights has been sharpened as 2014 brings another year of drought conditions to California. Shortly after SJWD board meeting and the near manifest destiny proclamations of historic water rights to the North Fork of American River, impounded behind Folsom Dam, the Sacramento Bee reported that state water officials might curtail those pre-1914 water rights.

This little excerpt from Primer on California Water Rights provides some background to our arcane water laws.

Pre-1914 Appropriative Rights. Appropriative water can generally be defined as water that is diverted for use on non-riparian land. Prior to 1914, there was no comprehensive permit system available to establish appropriative water rights in California, and the establishment of such a right required simply posting and recording a notice of intended diversion and the construction and use of actual diversion facilities. The measure of the right was the nature and scope of the use of the water diverted.

Pre-1914 appropriative rights are relatively common. However, they are also fairly difficult to establish, and require evidence of original use prior to 1914 and continued use thereafter. Recorded notices of diversion can sometimes be obtained through county recorder’s offices; some pre-1914 diverters also file notices or reports of appropriation with the State Water Resources Control Board (the “SWRCB”). – A PRIMER ON CALIFORNIA WATER RIGHTS, Prepared by Gary W. Sawyers, Est

1854 dam on American River started a water right

For the predecessor of the SJWD, the North Fork Ditch Company had appropriative rights to 3,000 miner’s inches or 27,000 gallons of water per minute from the river. This water right was established because the American River Water and Mining Company built a dam and 33 miles of canals and flumes from Auburn down to Mississippi Bar in Sacramento County in the 1850’s. The primary purpose of the dams and the North Fork Ditch was to supply water to the mining districts along the American River. This water project wasn’t for flood protection, agricultural irrigation or for municipal water supplies. It was a project to use a public resource, water, for the purpose of generating profits.

Bigger dam swallows older dam

The Birdsall Dam, North Fork Ditch and North Fork Reservoir were abandoned with the completion of Folsom dam in 1950’s. The North Fork Ditch Company, who owned the dam and canal, was sold to the newly established San Juan Suburban Water District in 1954. The new water district acquired the agreement with the Bureau of Reclamation, who was building Folsom Dam, for 33,000 acre of water per year. One small dam was swallowed up by a larger dam.

Folsom Dam saved a San Juan Water District

There is little doubt that without Folsom Lake, the San Juan Water District would have had virtually no water to deliver to customers in Granite Bay, Citrus Heights, Fair Oaks and Orangevale during the drought of 1977 and most recently in 2013.  The low river flows would have meant SJWD sucking up all the surface water and leaving a dry river bed. Yet, the SJWD continues to blame the Bureau of Reclamation for the perceived mismanagement of water storage in Folsom potentially imperiling their current water deliveries and forcing drought condition water conservation measures and rate increases for their retail customers.

Water diversion for commercial purpose

The original water right was established to provide water to the gold miners along the north fork of the American River. As placer mining diminished, the excess water was sold to surrounding communities for agricultural and residential purposes. Beyond the faulty argument that anyone can lay claim to a public resource for exclusive private use, it’s also a hollow argument that the water right holder can sell the water to whomever they want for whatever purpose they end user desires. What began as private companies diverting surface water for commercial uses has evolved into organized water districts laying claim to the same natural resources that belongs to the public.

Water districts own the rain drops and snow flakes

It’s as if the water districts believe they have their name imprinted on every rain drop and snow flake that falls from the sky. Do water districts own the clouds above the Sierra’s that cause the precipitation? Will the SJWD declare that part of the evaporated water from Folsom Lake is also theirs and if it falls as precipitation in another state those residents should pay them for the use of the water? Does SJWD own some of the ground water that is pumped because some of the surface water percolated into the aquifer? When does a water right begin and when does it end? Did the Native American’s of the region, who first used the American River water, have any claim or water right?

Who profits from a public resource?

Any natural resource, when in abundance, should be put to the highest and best use. But is irrigating a private golf course the highest use? Are commercial operations such as Starbucks that generate revenue many thousands of times greater than the cost of the water the best use? Was American River water meant to be used in a water feature for an upscale housing subdivision? When do we start putting people and the environment a head of companies that just want to use our natural resources for profits? Maybe it is time to let the water features and the golf courses dry up and have companies like Starbucks pay a fair price for the privilege of converting river water into piles of green cash.

Water rights and responsibilities

What were the environmental impacts of damming the river before state of California or the U.S. Government could even evaluate the effects? The dam stopped the annual migration of salmon up the river. The water was used to scar the surrounding area with limited hydraulic mining and greater dredging operations that left huge mounds of rock tailings. Since SJWD acquired the historic pre-1914 water rights, don’t they also acquire some the responsibility for the environmental destruction the water caused?

Where is the right to clean water?

If we are to recognize these artificially constructed water rights, those who lay claim to the rights must also be honest and held accountable. Ground water levels in California are dropping rapidly but there is no law that states well owners must meter what they pump. There are no meters on how much water is pumped out of rivers and sloughs either. There is virtually no requirement that farms monitor the drainage water they pump back into rivers and sloughs that might contain pesticide or fertilizer pollution. That is why the East Bay Municipal Utility District went to great lengths and expense to pump water from the Sacramento River around the Delta with the Freeport Regional Water Project. This in itself is a mini-peripheral canal.

The incompetent Bureau of Reclamation?

The SJWD Board can shake their fist at the Bureau of Reclamation all they want but it doesn’t change the fact the federal government is in charge of the dam they constructed and operate. Much to the chagrin of long time Granite Bay residents and Board members, the Bureau, whose primary function is to create irrigation water, must now take into consideration other downstream users, the environment and flood protection. SJWD’s water rights are a myth when they come in conflict with the modern day reality that a scarce commodity must be managed for the benefit of the entire community.

Reference

150 Years of Water: The History of the San Juan Water District, by Gary Pritzer, Prepared by the Water Educations Foundation, 2004