In a sign of how wobbly California's water law regime has become, farmers with long-standing water rights in the Sacramento-San Joaquin Delta made an offer to the state of California late last month in which they promised to cut their water use by 25%, in exchange for a promise from the state that no further reductions would be applied. It was a shrewd and unprecedented tactic, considering many farmers hold decades or even centuries-old water rights. Under California's hybrid prior appropriation/riparian system of water law, many farmers obtained their water rights by making use of waterways in the early 20th century. Because older rights take priority over newer rights, older rights holders are virtually guaranteed their allotment, even in times of scarcity. But this year's drought is so severe that state regulators are enforcing mandatory cuts on even the most senior water rights holders.
And that prompted farmers in the Sacramento-San Joaquin Delta to negotiate the 25% reduction settlement, which the state agreed to last week. The feeling is that while 25% cuts are painful, at least farmers can plan for those reductions with some certainty, and avoid a doomsday 100% reduction scenario. This farmer sums it up well:
“For me, 25 percent I can handle,” said Gino Celli, who farms 5,000 acres of tomatoes, alfalfa and corn in the delta. “Anything more than that — man, I’m done.”
“There is a threat that the state might try the unthinkable and tell us that we cannot use any of the water,” said Dennis Gardemeyer, a delta farmer who helped spur the deal. “I and almost everyone in the delta think that will result in all manner of lawsuits and they will not prevail, but there’s always that threat.”
Now that the framework for agricultural water reductions are in place, farmers will have to choose between a painful but feasible voluntary reduction, or roll the dice with their existing rights and potential litigation. It seems all but certain that cuts to long-standing rights holders are forthcoming:
Other cuts are virtually inevitable for farmers who don’t participate, said Felicia Marcus, chair of the state Water Resources Control Board. [...] Further cuts will go beyond any that have ever happened before: “Senior [water rights] holders have never been cut as much as they will be this year,” Marcus said. “Lawsuits are inevitable.”
Under the deal farmers in the Sacramento-San Joaquin Delta had until today, June 1, to submit their reduction plans to the state. It will be interesting to see how many of the region's farmers submit plans and how many of those plans get approved. It's not clear at this point what the state's criteria will be for evaluating those plans, but a pragmatic approach would favor reductions that can be easily monitored and enforced, like foregoing a crop entirely or fallowing a field. In some cases cutback orders are being enforced by the honor system, and as little as one fifth of farmers may be complying with mandatory water reductions. Negotiated water reduction deals are promising, but reducing the monitoring and enforcement pressure on state regulators should be a central component to any lasting water law reform.