Delta water may need to stay put;
Too much promised to rest of state, task force says
By Mike Taugher
Inside Bay Area
February 24, 2008
During the Great Depression, the southern and central parts of the state cut a deal with the north: Let us build big pumps and canals to take your surplus water, and we'll give it back when you need it.
The time to deliver on that promise may be nearing — but coming through will be tough because California's water supply is already threatened by climate change, a declining Delta ecosystem and a desiccating Colorado Basin.
The state agency responsible for doling out water rights, it turns out, has a massive backlog of pending applications for Delta water at the same time experts are coming to the conclusion that the system is already maxed out.
This puts the state Water Resources Control Board in a difficult position: How can it satisfy historical assurances for the north when the amount of water available for other parts of the state is already being cut?
"Those (applications from the north) can change the equation pretty significantly," Vicky Whitney, the water rights division chief for the State Water Resources Control Board, testified recently.
The pending applications, which total more than all of the Delta water delivered each year to Southern California, would, to the extent they are granted, take water directly from the San Joaquin Valley and Southern California, Whitney told a task force formed to develop solutions to the Delta's water supply and environmental problems. California, Whitney said, "let permanent demand occur in geographic areas on borrowed water."
Task force analyzes demand
The problems posed by the pending applications emerged in recent months during meetings of the Delta Vision task force, appointed to solve the intertwined problems of the Delta's deteriorating ecology and the state's increasingly unreliable water supply.
Members of the task force, who were becoming convinced that too much water was being promised from the Delta, wanted to know how much more water was being sought in the rivers and streams that ultimately drain to the estuary.
The number that came back was startling: 4.8 million acre-feet a year, a figure greater than the 4.1 million acre-feet under contract — but rarely delivered fully — from the sprawling State Water Project that serves 25 million people in Southern California and 750,000 acres of farms in Kern County.
And that does not count an additional 3 million to 5 million acre-feet being requested by the state on behalf of Northern California counties.
Not all of those unfulfilled claims will prove legitimate. But played out to its worst extreme, the situation could dry up Delta water supplies to Southern California and the San Joaquin Valley, regions that are highly dependent on Delta water delivered through the State Water Project and the smaller, federal Central Valley Project.
"I don't get terribly panicky about this," said Jerry Johns, deputy director of the state Department of Water Resources, which manages the State Water Project. "This is something that will play out over a series of years. There will be time to adjust to this."
Planners counted on dams
The situation echoes the fight over the Colorado River, where seven states, including California, divided up rights to the river's flow in 1922. That issue arose because states, relying on a string of wet years, assumed the river carried more water on average than it really did.
Meanwhile, Southern California was for a time allowed to use more than its share of the Colorado River. That began to end in 2003 when California agreed to wean itself from overuse of the river so other states, especially Nevada and Arizona, could take their share.
In the Delta, water contracts were signed when optimistic state planners were counting on major new dams to supply water from the Eel, Klamath and Trinity Rivers on the North Coast.
Those dams, which might have supplied an additional 5 million acre-feet of water to the Delta, were never built.
The result is just like what happened with the Colorado River. Parts of California developed on overly optimistic water supply estimates and an obligation to eventually return "surplus" water.
Johns said it is incumbent on Southern California water agencies to develop more water supplies, conservation programs and other plans to make up for future losses from the Delta.
It is not known how many of the pending applications will be granted. But the fact that the demands in the north are on a collision course with the rest of the state should not be a surprise because the North Coast rivers were put off limits to dams in the 1970s and 1980s when those rivers were designated wild and scenic.
"They've known that water supply wasn't going to be there for about 25 years," said John Herrick, manager of the South Delta Water Agency. "Nobody planned. That doesn't mean the solution would be easy, but they've had 25 years."
Further, the solution most often touted by some water agencies — an aqueduct to connect the Sacramento River directly with south Delta pumps — will not work if the underlying problem is an insufficient water supply, some critics contend.
"The early plans anticipated developing a lot more water," said Greg Gartrell, assistant general manager of the Contra Costa Water District. "That never happened. The result is that the system has been squeezed to what appears to be a limit. A (peripheral canal) will not solve the lack of water."
Laws not yet tested
The deal over water distribution stems from a string of laws dating back more than 70 years that were intended to prevent a repetition of Los Angeles' water raid on the Owens Valley, an incident made famous in the movie "Chinatown."
The laws, referred to collectively as "area of origin" laws, require water users in Southern California and the San Joaquin Valley to give Delta water back when the region needs it and can use it.
But the laws have rarely been applied or tested in courts, leaving it unclear how far the rights extend.
The key is a 1933 promise that water will be made available to the watershed where the water originates or in areas "immediately adjacent to" the watershed that can be "conveniently" supplied with water from it.
Rather than test how broadly that language applies, state water officials in 2002 negotiated a deal with the cities of Benicia, Fairfield and Vacaville that provided the cities with the water they wanted without setting a precedent that defined them as being in the area of origin.
Benicia, in particular, was making a claim that some water officials did not want to see cemented in precedent. That city's watershed drains into the Carquinez Strait, which the city argued was a historical source of fresh water but other water officials said did not properly belong in the area of origin.
Today, the biggest applications are from the Stockton East Water District, Delta Wetlands Properties, a private enterprise that is trying to build for-profit reservoirs in the Delta, and the Westlands Water District, a 600,000-acre farm district whose claim to San Joaquin River flow outraged other farmers. Other applicants include the growing Sacramento region and the cities of Davis, Stockton and Woodland.
"Part of their responsibility was to go out and develop that water," said Kevin Kauffman, general manager of the Stockton East Water District, which has applied for 1.4 million acre-feet of water to accommodate growth and recharge an overused aquifer. "They just simply haven't done it."
Taken together, those applications represent an enormous potential strain on a water system that has already been stretched past the breaking point.
In December, for example, a federal judge imposed water delivery cuts to save one fish species, the Delta smelt, from extinction. State wildlife officials are imposing more restrictions to protect another fish species, the longfin smelt.
And the Delta Vision panel all but concluded that Delta water supplies would shrink in coming years to protect the environment.
"Everything points in the direction of not just being fully allocated, but way overallocated right now," William Reilly, a former U.S. Environmental Protection Agency administrator under the first President Bush and a member of the Delta Vision panel, concluded at a recent hearing.
Michael Jackson, an environmental lawyer in Plumas County and a director of the California Water Impact Network, said about 5 million acre-feet of water originates in the county located in the Sierra Nevada but only about 2,000 acre-feet of water rights exist there.
He said it is time for the water resources board to open a formal proceeding, likely to take years, to straighten out how much water is available and how best to distribute it while protecting the public trust values of that water.
"The thing that makes the state board the only place you can probably solve it is they have the ability to put everybody's five leading experts on the stand, and then let everybody's leading lawyers cross-examine them," Jackson said. "There's no more B.S."
Jackson said the board has not wanted to exercise that power in the past.
"It comes with unexpected results," he said, adding that the board appears more willing to wade into the problem recently.
"It's like they're waking up from a deep sleep," he said.