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'Public Trust' Next Big Fight(Part 1)

It means that there is now a new front in the war on ag water.

Jan 14, 2011


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'Public Trust' Next Big Fight!(Part 1 of 2)

 We've been noticing a number of recent articles that mention the phrases 'public trust' and 'reasonable use' in connection with ag water.  If this isn't getting your attention, it should.  It's no coincidence that just a week after Jerry Brown was inaugurated and a few days after naming John Laird the new Secretary of the California Resources Agency that we're seeing talk of these phrases.  What do they mean?  It means that there is now a new front in the war on ag water.  They have attacked the Delta through the courts to make sure your water can't be delivered.  They have attacked the rivers through the courts to make sure your water runs to the ocean.  Now they are saying you are wasting the water you have left, which is a violation of the 'public trust' and 'reasonable use' doctrines of the law.  And now they think they have friends in Jerry Brown and John Laird to help carry out their plan. 

Various elements of the environmental community have been trying to create the public perception that agriculture wastes water.  They say ag needs to conserve water.  If only agriculture would conserve their water, we would have enough for everyone.  You know the story:  ag gets 85% of the water and they're wasting at least 20% of it.  Never mind that ag only gets 50% of the water they've contracted for, even in a good year.  Never mind that they're not going to waste a when they're paying for 100%, but only getting 50%, even in a wet year.  

You know how many years the enviros had to create the impression that it was the pumps causing all the problems in the Delta.  We had to fight long and hard to get people to notice that dumping sewage into the Delta was a problem.  It took years to make a case that was obvious to anyone who would take an honest look at it.  The newest public perception campaign is ag water waste.  Wasting water is not in alignment with the 'public trust' or a 'reasonable use' of ag water.  So, it's another way to take it from you.  Do not believe that these are just idle phrases from writers filling space in newspapers.  Just a week after we get Jerry Brown and John Laird we get a series of articles on 'public trust' and 'reasonable use' with accusations from enviros who now think they have friends in high places.

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NRDC: 'Reasonable' Opportunity To Conserve Ag Water

Barry Nelson

My recent posts outlining a recommended water agenda for Governor Brown, included several recommendations to promote water use efficiency in the agricultural sector.  A new report prepared by the new Delta Watermaster outlines very similar opportunities.

The Delta Watermaster was created in the legislative reform package passed at the end of 2009.  This Watermaster report  addressing the potential for the state’s constitutional prohibition on “unreasonable use” of water to encourage agricultural water conservation represents perhaps the first significant product from this new entity. 

The report mentions several opportunities to improve agricultural water use efficiency.  Here’s one I find particularly compelling.  The report points out that many agricultural delivery systems  “are older and lack the flexibility to provide ‘on-demand’ irrigation deliveries at the times water can be used more efficiently.  Without such flexibility, farmers are unable to make best use of irrigation scheduling to reduce water use.”   

So why is “on demand” irrigation important?  Ask yourself what would happen to your energy use if you couldn’t decide when to heat or cool your home.  If your utility told you that you were allowed to heat or air condition your home only in the early morning hours of every day, it would prevent you from using your energy efficiently.  You’d feel that you had to heat or cool your home just in case the day proved to be very hot or cold.  Well this is the position farmers are in if their irrigation district can’t schedule deliveries.  These farmers are forced to irrigate when they can, rather than when their crops truly need it.  It won’t surprise you that water use in these delivery systems is higher than elsewhere.  In a state with limited water resources and damaged fisheries and river ecosystems, that sounds pretty unreasonable to me. 

Finding opportunities to promote efficiency in all sectors of the agricultural community has been a challenge over the past several decades.  In the urban sector, the 20 by 2020 program, the California Urban Water Conservation Council, and other ambitious efforts have created a system of water efficiency requirements for all California cities.  However, no similarly effective program exists to encourage water use efficiency across the board in California’s agricultural industry. 

It’s important to note that some agricultural water users are highly efficient.  For example, NRDC often disagrees with the Westlands Water District and the Kern County Water Agency regarding Delta protections issues.  However, some of the farmers in these portions of the Central Valley manage their water very carefully.  (I’ve written here about encouraging developments in this part of the Central Valley.)

The problem is that efficient farmers are the exception, rather than the rule.  This Pacific Institute report identifies agricultural water use efficiency as a very large potential source of water.  In fact, agricultural efficiency has as much potential – or more – than urban efficiency.  Untying – or cutting the Gordian Knot of agricultural water use efficiency is one of the keys to helping California find the water supplies it needs to meet its future needs and restore its aquatic environment and fisheries. 

There’s a paradox here.  Water gained through agricultural water use efficiency is among the most affordable sources of water in the state.  But some agricultural water users object that efficiency investments are not cost effective.  The problem is that many California farmers have highly subsidized water.  Some receive their water for free.  Of course some of these farmers argue that conservation is not cost effective – just as it wouldn’t be cost effective for you to buy an efficient new home furnace or air conditioner if your energy use was free.  Again, something about that sounds unreasonable.   

Remember – unlike energy, California’s water is a resource owned by the public.  Water users have a legal – a constitutional – obligation to use water efficiently.  Perhaps the state’s reasonable use doctrine can help create a truly state-wide agricultural water use efficiency program. 


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