Lloyd Carter

Unreasonable Use of California’s Most Precious Resource

Nearly a century ago, Fresno County widow Amelia Herminghaus set off a revolution in California’s water world that fundamentally altered how water could be used.

Herminghaus and her late husband had built an 18,000-acre farming and ranching empire straddling the San Joaquin River near Mendota, including 22 sloughs that paralleled the riverbed. In the spring, heavy runoff from the river would fill the sloughs and create fertile pastureland for their cattle and livestock. All but 1,000 acres of the Herminghaus estate had riparian water rights to the river, which are at the top of the water rights hierarchy in California, ahead of the so-called appropriators, who do not own land along the river but need the water.

By the 1920s, California’s fledgling electricity industry was beginning to dam Sierra rivers to capture and store water to run power turbines during the summer and fall months. Southern California Edison Company, by blocking spring flood flows with its dams in the San Joaquin River watershed, cut off Herminghaus’ natural irrigation system from the spring flood flows, so she sued Southern California Edison. And won.

The California Supreme Court affirmed her superior riparian right to the natural flow of the river, even though the court noted it was a rather wasteful way to irrigate. Southern California Edison had only appropriative water rights, which were junior to the senior rights of riparians and thus could not manipulate the river’s natural flow to store water in the mountains for summer electricity production.

Outraged, the power companies and appropriators interested in additional diversions of river water throughout the state pushed to change the law. And in 1928, California voters approved an amendment to the California Constitution limiting all water users in the state, including riparians, to only the reasonable and beneficial use of water and “reasonable method[s] of use.” (Although almost any use of water can be beneficial to the user, it is not always reasonable.)

Specifically, Section 2 of Article 10 of the state constitution was amended to read:

It is hereby declared that because of the conditions prevailing in this State [the long drought in the 1920s] 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. (This language was also enshrined in Section 100 of the California Water Code.)

In the first few decades of the reasonable use doctrine, there were few, if any, prohibitions on use or method of use of water as the big federal and state water projects came online in California, increasing supplies for chronically water-short Central and Southern California.

And then, in the mid-1980s, the doctrine was invoked by the State Water Resources Control Board following the poisoning of the Kesterson National Wildlife Refuge in Merced County by toxic agricultural wastewater from the Westlands Water District in Fresno County. The Westlands’ subsurface drainage water, which must be drained if the farmland is to stay productive, had dissolved the trace element selenium, which is scattered through the Westlands soils. Selenium, a micronutrient, can become toxic at slightly higher levels, as little as 2–5 parts per billion.

The dissolved selenium in the Westlands drainage had been sent by drainage canal to Kesterson, where it entered the food chain, bio-concentrating as it moved up the food chain, killing fish and birds, and triggering grotesque deformities in bird embryos nesting around the drain-water evaporation ponds at the wildlife refuge. The drain water in the ponds was also leaking onto adjacent private property and flowing underground to the nearby San Joaquin River.

The State Water Board, following public hearings in late 1984 and early 1985, found that the U.S. Bureau of Reclamation, the operator of the Kesterson evaporation ponds, had created a public nuisance and pollution through its stopgap temporary “solution” of evaporation ponds at Kesterson. The Water Board ordered the Kesterson ponds cleaned up or closed within three years. (The U.S. Department of Interior, the parent agency of the Bureau of Reclamation, closed Kesterson a few weeks after the State Water Board order was issued.)

That 1985 cleanup order specifically stated: “If the Bureau [of Reclamation] closes Kesterson Reservoir and continues to supply irrigation water to Westlands without implementing an adequate disposal option, continued irrigation in the affected area of Westlands Water District could constitute an unreasonable use of water.” (Emphasis added.) A 1987 Water Board technical staff report said unsafe disposal of wastewater was not even a beneficial use.

Unfortunately, the State Water Board took no action over the next 25 years to resolve the question of whether irrigating marginal and selenium-laced soils was a reasonable use. The Bureau of Reclamation, of course, continued to supply Westlands irrigation water without providing the “adequate disposal option” that the State Board required in the Kesterson cleanup order.

One of the authors of the 1985 Kesterson cleanup order was most likely longtime Water Board attorney Craig Wilson, who in July 2010 was appointed the first Delta “Watermaster.” Wilson spent more than 30 years at the State Water Board and was the Board’s chief legal counsel from 2000 to 2005 until departing for private practice. The legislature passed a law in 2009 creating the Delta “Watermaster” position, and Wilson accepted the appointment, which gives him the authority to monitor and report, as well as take water rights enforcement actions in the 700,000-acre Delta region, including, in theory, unreasonable use issues.

Wilson recently made waves in California’s water world by issuing a report to the State Water Board entitled “The Reasonable Use Doctrine and Agricultural Water Use Efficiency.” The report addresses how the state’s Reasonable Use Doctrine may be employed to promote more efficient water use in the agricultural sector. The report explains how the Reasonable Use Doctrine is the cornerstone to California’s complex water rights law and that all water use must be reasonable. It contends there is a wide array of irrigation practices in place today that result in the more efficient and therefore more reasonable use of water.

The Wilson report concluded that the Reasonable Use Doctrine may be employed to promote a wider use of such efficient practices without going after each individual water waster. The report, supported by the Water Board staff, was presented to the State Water Board as an informational item only at its January 19 Sacramento meeting.

The report calls for the State Water Board to convene a Reasonable Water Use Summit and contains specific recommendations for consideration during the summit. The recommendations range from wider employment of efficiency practices such as improvements to the irrigation systems that deliver water to farms, weather-based irrigation scheduling and more efficient irrigation methods. Not mentioned in the report is whether the continued irrigation of high-selenium soils without safe and adequate drainage is an unreasonable use of water, as the Water Board contended 25 years ago.

The agribusiness response to the Wilson report was typical. Mike Wade, executive director of the California Farm Water Coalition, told the Los Angeles Times that Wilson’s conclusion that “small changes” in irrigation methods could yield “significant amounts” of water savings was flawed and was based on flawed research. Wade also claimed it would be too expensive for farmers to implement Wilson’s recommended improvements in irrigation efficiency. A considerable chunk of California’s farmland is still irrigated by flood irrigation, similar to what was practiced in Egypt 5,000 years ago.

Wade argued that Water Board regulations on reasonable water use would usurp farmers’ flexibility in deciding which crops to grow and how to grow them.

Wilson’s report was also criticized by environmentalists. The California Water Impact Network (C-WIN) wrote the State Water Board asking that Wilson’s report be enhanced.

“[T]he Delta Watermaster’s report should be amended to include consideration of unreasonable use of water as a result of irrigation of saline, seleniferous soils which pollute groundwater and surface waters. Specifically, New Melones [Stanislaus River] water releases are made at the expense of other beneficial uses for dilution of the salt pollution from western San Joaquin Valley sources such as the Grasslands Bypass Project. Downstream, farmers in the Delta are harmed by the salt pollution from those same upstream agricultural sources,” wrote C-WIN Executive Director Carolee Krieger.

Krieger’s letter added: “The Bay-Delta food chain continues to be contaminated with selenium as evidenced by selenium water quality impairment from agricultural sources for 41,736 acres in the Delta, 5,657 acres in the Carquinez Straights, 70,992 acres in San Francisco Bay Central, 9,024 acres in San Francisco Bay south and 68,349 acres in San Pablo Bay. The San Joaquin River is a major source of that impairment…The Reasonable Use Water Summit should consider if the benefit to a few from irrigation of toxic lands in the western San Joaquin Valley is worth the overall cost to society and the environment.”

It remains to be seen if the feckless and timid State Water Board, given the clout of agribusiness in California, will even call for a Reasonable Use Water Summit prior to a proposed $11 billion controversial water bond on the November 2012 statewide ballot.

The ever-hopeful Wilson thinks such a Reasonable Use Water Summit could be held within six months. But Water Board members over the decades have continually deferred making the hard decisions that need to be made about the continued irrigation of 300,000 acres of high-selenium soils in the western San Joaquin Valley with no safe disposal method for the toxic drainage. Wilson is to be praised for raising the issue of the reasonableness of current irrigation practices in California, with agriculture using 80% of the state’s developed (surface water) supply. The Kesterson/Ag drainage time bomb is still ticking. The question is, can the State Water Board hear it?

  • The Community Alliance is a monthly newspaper that has been published in Fresno, California, since 1996. The purpose of the newspaper is to help build a progressive movement for social and economic justice.

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