California's Limited Freshwater Supply - Part III
(Originally posted February 01, 2017 on Blogger)
Between the Colorado River, and Central Valley Project (CVP), California was transforming into what would become the biggest farming state in the country. But more infrastructure was needed to supply the thirsty south with freshwater. This was accomplished by the approval of the State Water Project (SWP) in 1960, when California voters (narrowly) approved Prop. 1.
Since approval, the SWP has become the largest state-built water and power development and conveyance system in the United States. It supplies 29 urban and agricultural water suppliers (contractors) across the state, with 70% of contracted water supply going to urban users (~25 million people), and 30% to agriculture. The SWP maintains dozens of storage facilities (reservoirs, lakes, forebays, etc.), pumping plants, hydroelectric plants, as well as ~701 miles of canals and pipelines. Supervision of the SWP is under the California Department of Water Resources.
As with the CVP, and Colorado River, water deliveries depend almost entirely on nature: Sierra snow pack levels and subsequent snow melt, as well as storm runoff. To a lesser extent, deliveries can be affected by legally-dictated environmental constraints on project operations. With everything taken into account, deliveries range from year to year from 1.4 million to almost 4 million acre-feet. According to the California Department of Water Resources, as of January 2000, over 60 million acre-feet had been delivered since the SWP started delivering in 1962. 60 million acre-feet divided by 38 years of deliveries equals an average annual delivery of just under 1.58 million acre-feet.
However, the 29 contractors (listed at the bottom) may request from the SWP a maximum annual delivery of Table A water of over 4.1 million acre-feet. An amount the SWP has never been able to deliver since its inception; not even in peak wet years. I'll explain Table A water shortly. Examples of just how erratic deliveries can be, take for example a peak wet year such as 2006, when deliveries totaled about 3.7 million acre feet. Compare that to just a couple years later, when in 2008 (a dry year) deliveries totaled less than 2 million acre feet. Forecasting annual snow pack and runoff totals is not possible. Long-range forecasts like AccuWeather's 90-day forecasts, or Gary Lezak's LRC Hypothesis are without merit.
Being able to predict annual water availability would make life for the SWP a lot easier, as they need to project supply in order to inform their contractors as to what to expect. Contractors are responsible for delivering the supply of freshwater to their citizens (agriculture, industry, urban, etc) and must implement water restriction measures if supplies are expected to be low. These sorts of things take time to implement. Advertising to the general public alone takes time, not to mention capital. Farmers need to know as much as possible ahead of time in order to make crucial planting decisions; do they plant or allow fields to go fallow? Urban users, particularly ones with lawns, may need to be informed that usage limits are in effect and penalties will be applied for overuse. The logistics of it all is quite complicated and involved.
The best chance the SWP has in projecting water availability are when large-scale climatic events such as the El Niño Southern Oscillation (ENSO) are expected. But as southern Californians discovered in 2016, even this isn't a guarantee of increased water supply to the state. On January 15, 2015 the California Dept. of Water Resources issued a notice to its contractors assuring a 15% increase in water deliveries, no doubt expecting a wet El Niño year. A wet year that never saw fruition (at least not in SoCal). Though, I should mention that not all El Niño events have resulted in wet seasons for southern California, and therefore shouldn't be assumed to. This aside, one can imagine the complications failed projections can create; not just for the SWP, but for its 29 contractors as well.
It isn't just about how much freshwater is available each year, but also about when, where, and at what type of precipitation, and at what rate freshwater been supplied by storms. Rate of snow melt, whether storms were warm (rain) or cold (snow), were storms short and intense or was it a long wet season. These factors can affect availability of freshwater in late summer/early fall months. It's also important to consider that many reservoirs in traditionally wetter areas are not kept full to capacity so they can still provide flood control. When considering the question, "is the drought in California over", think about how this year's early and heavy snows could melt away rapidly if the rest of our winter is warmer than normal, and followed by a warmer-than-normal spring... followed by a hotter-than-normal summer. Timing, amount, rates, precipitation type, and location of storms are all factors the SWP (CVP and Colorado River allocation projections) must consider. It isn't just about having an above normal January.
Consider late season high snowfall amounts in the northern Sierras. This translates to later-than-usual snow melt supply rivers with enough water to allow the SWP's Delta pumping facilities to continue operating near or at capacity for extended periods, thereby increasing the percentage of water (Table A water) delivered to contractors. Indeed, late season snow in the Sierras would be an ideal situation; all-season snow perhaps being the best.
Contracts signed with the SWP are good through 2035, with each contract allocating specified amounts of freshwater to each contractor. Butte City's contract specifies a max delivery amount far less than larger contractors such as the Metropolitan Water District of Southern California (which accounts for over 45% of the total allocations to all contractors).
These "annual allocations" are paid for by the contractors. Everything is paid for by the contractors, from facility maintenance and operations to transportation charges based off distance between the Sacramento-San Joaquin Delta (Delta) and the individual end contractor's water delivery points. Contractors also pay any mitigation costs for any environmental impacts SWP operations have on fish and wildlife.
I mentioned Table A water above. Here's where things tie back into water rights that I touched upon in part 2 of this series. Put your seat belts on, because we're going for a ride...
All contracts signed by the 29 contractors back in the 1960s (and good through 2035), established a date that SWP water would first be delivered, along with a schedule of the amount each contractor could expect to be delivered each year. That amount is Table A water; a term used by the SWP which refers to the max amount of water each contractor can expect to receive each year. This term is necessary to distinguish between other types of water deliveries which I'll get to shortly.
As I mentioned above, the SWP has never been able to deliver the max amount of Table A to its contractors in all the years of operation. They forgot to get nature to sign off on the deal apparently. The original contracts initially totaled 4.23 million acre-feet/year to all contractors, but this was amended in the 1990s to a total of 4.172 million acre-feet/year (which is the max Table A water available for delivery from the Delta). The SWP admits on their website that they cannot deliver this amount "some" years, but expects they can in wetter years. However, they've not been able to deliver this amount yet. Perhaps it's time for another amendment? Urban sprawl, er, I mean urban planning based off a max Table A annual delivery that has never been achieved seems to me to be a rather unwise thing to do. But what do I know?
Though the amendment lowered the total max Table A amount, it still does not represent reality on the ground. Up until the 1980s the shortage of max Table A delivery to contractors was rarely an issue. Back then, contractors simply did not often need the full allocation. However, population growth and extensive droughts have changed all that.
Many disputes have since come out of this dilemma. In December of 1994, the Department of Water Resources met with 5 contractors in Monterrey, CA to negotiate 14 broad principles regarding amendments of contracts (like the one above). Amending articles were added to contracts that changed allocation of water to agriculture and urban suppliers with regard to drought. This is a very controversial topic that will invariably lead me on a tangent. But this agreement is infamously known as the "Monterrey Agreement" and worth researching for those interested. I could possibly do an entire write up on that topic alone, but let's move on!
Table A water is distinguished as Table A water because there are supplemental deliveries to it, such as Article 21 water, Carryover water, and Turnback Pool water.
Article 21 water is water that can be delivered to a contractor in addition to their Table A water. This would be on a short-term basis, and only if requested (and approved). This isn't considered "extra" or "surplus", as such requests would be made in times of actual need in order to meet demands. In order for a contractor to be eligible for Article 21 water, there must first be enough water flowing through the Delta. This is most likely between December and May when snow melt and runoff from storms are enough that releases from the SWP and CVP reservoirs (some reservoirs are shared) along with unregulated natural flows into the Delta exceed Sacramento Valley water diversions, Delta exports, and flows required to meet Delta water quality and flow requirements. Remember, Delta water quality depends on enough flow to stave off salt water intrusion, so allocating too much water to contractors requesting additional Article 21 water would otherwise result in salt water contamination, thereby undermining everything. I'm pretty sure that was a run-on sentence.
In addition to the above obvious requirement that the Delta can supply Article 21 water while maintaining its water quality, contractors must show that they will be able to use the water. They can use the water to offset groundwater use, or can store if for an expected parched season to come. However, on this latter point, contractors can only store Article 21 water in their own storage facilities. They cannot use SWP storage facilities.
One final requirement for eligibility is that the requested Article 21 water does not interfere with Table A allocations to other contractors.
Carryover water is water that can be allocated to a contractor, but NOT used in the year it was requested and approved. Sounds oddly complicated, but it's simple really; Carryover water is meant to act like a "water savings account". You request the water in 2017 because you expect 2018 will be a dry year. The SWP approves your request and delivers your Carryover water. You store it for use as needed in 2018. That's it. It's an insurance policy of sorts. This offers contractors some flexibility in tough times, albeit not much given the already below max Table A deliveries.
Carryover water, unlike Article 21 water, is stored in an SWP facility; the SWP's share of the San Luis Reservoir as space is available. This water is diverted, as needed, to the contractor the following year. Requests for Carryover water must be made no later than the last 3 months of the delivery year (Oct. Nov. Dec.). Contrary to popular belief, the delivery year is not the same as the water year. Delivery year is the same as the regular old calendar year we all know and love. In hydrology, the water year is used (Oct. 01 to Sep. 30).
Turnback Pool water is water contractors can sell to another contractor. The Department of Water Reclamation sets the price for Turnback Pool water each year around February and March. Otherwise contractors in the relatively wetter north might price gouge parched southern contractors. Unlike Article 21 and Carryover water, Turnback Pool water isn't actually a separate delivery. It is a portion of a contractor's Table A water that may not be needed by said contractor. I've not checked, but I'm guessing Turnback Pool water isn't something southern California has ever had the luxury of offering others. Call it a hunch.
Ok we say, this is great! We finally understand water rights in California. So much better than in the old days when riparian vs. non-riparian vs. senior vs. junior vs. nature was the norm. Well... not so fast my friends. You see, there are two legally-protected "surface" water rights that have priority over the SWP. I use scare quotes on the word "surface" because as you'll recall from a previous part of this series, surface includes sub-surface water supplies near streams, rivers, and other sources; including dried out streams, rivers, and other sources. Those two legally-protected surface water rights that trump the SWP are riparian and appropriative water right holders. Riparian being land adjacent to or having a stream running through it, and appropriative being non-riparian land that diverts water to itself.
Remember those folks from way back in 1914 and earlier who filed for permits with their respective counties? These people and their kin, and their kin's kin, and their kin's kin's kin come first; and among them, there are those who come first before others. "First in time, first in right." Water users with prior water rights are assigned top priority for water in the Department of Water Reclamation's modeling of the SWP's water delivery reliability, even ahead of Table A deliveries.
Though, so as not to cause undue alarm among my readers, these supreme right holder's demands are a mere drop in the bucket as compared to the other 29 contractors, or any single one of them for that matter. Water rights public search can be found here.
Let's discuss the top-tier water right holders; riparian landowners with pre-1914 permits/filings. If you're a landowner with riparian land, and have filed for permit in 1914 or earlier and can prove it, then you are top tier my friend.
Those old riparian and non-riparian rights still hold to this day. So long as the right holders haven't moved, and have continually taken their share without lapse, their top-priority status remains. A lapse of 5 years, that is to say, non use for a period of 5 years, will result in that landowner losing his or her water rights. Use it, or lose it. Another way rights can be lost (for riparian landowners) is dictated by the "Source of Title Rule". Say someone owns 10 acres of land abutting a stream (riparian land). Perhaps it's a 1 acre wide by 10 acre long parcel with the 1 acre width adjacent the stream and the rest of the property extending away from the stream. If that property owner one day decides to partition his or her land into any number of ways they want... for ease of this example, let's say they partition it into a 1 acre lot adjacent the stream, and sell off the other 9 acres to someone else. Those 9 acres, though originally part of the riparian land, will lose its riparian title as it is no longer adjacent the stream.
Riparian rights can also be lost in transfer of ownership, as rights are non-transferable; they can only be passed down through the family, so long as the family keeps the title and has continuous use of the water.
Other things riparian landowners need to be aware of are what are called "correlative rights". These rights hark back to the fair use ideal outlined in English Common Law. Riparian right holders may have priority over the SWP and non-riparian appropriators, but riparian landowners along the same watercourse do not have priorities with respect to each other. Instead, they have correlative rights to use "reasonable shares of the total riparian water available. Sounds simple enough, until you try to define what "reasonable" is; something nearly impossible to quantify without stream-wide adjudication.
Appropriative (non-riparian): Landowners who do not live adjacent to, nor have a stream running through their land, but divert surface water to their land for personal and agricultural use. Their rights come second to riparian landowners with long-standing permits.
Both riparian and appropriative water right holders must also be well versed in Prescriptive Rights. Prescriptive rights are set up for right holders sharing the same watercourse. Adverse water use upstream may harm other users downstream during droughts. What was once their "reasonable share" in wetter years, is now adversely affecting downstream users. And without stream-wide adjudication, who the heck is going to tell them their use is not reasonable when arguments cannot even be quantified? Lawsuits ensued; obviously... it's California afterall! So to protect upstream users from downstream user litigation, prescriptive rights were invented to prevent downstream users from objecting to upstream user's use. Prescriptive periods last 5 years, but can be terminated early due to non use, or there is a wet year ipso facto cutting off prescriptive period need as more water would flow beyond upstream users and meet the needs of downstream users.
It gets better! There are exceptions on prescriptive rights! In the 1980 case of the People v. Shirokow, prescriptive rights cannot be obtained against the state's interest in allocating water in the public's interest. It all seems very convoluted, but when you consider the history of the state with regard to water, you can see how early under-defined laws needed shoring up with subsequent laws through time. The result is a complicated web of rights, each making sense in their own light, but almost antiquated and irrational on the whole.
Understanding this is all very important to adequately answering questions about whether we are in a drought or not, and if our water use is sustainable, as I hope to make clear at the end of this series.
This is probably a good point to stop. Water right are a difficult concept to fully grasp. In my next blog in this series, I'll complete my description of the SWP, including some rather amazing engineering feats it has and continues to accomplish. And we'll finally look at the major reservoirs, the California Aqueduct, and at long last make an honest attempt at answering the questions about the drought, and sustainable water use.
Please consider continuing on to Part IV by clicking the link below:
THE 29 CONTRACTORS OF THE SWP
1. Butte City
2. Yuba City
3. Plumas City Flood Control & Water Conservation District
4. Napa City Flood Control & Water Conservation District
5. Solano City Water Agency
6. Alameda City Flood Control & Water Conservation District Dist. Zone 7
7. Alameda City Water District
8. Santa Clara Valley Water District
9. Dudley Ridge Water District
10. Empire West Side Irrigation District
11. Kern City Water Agency
12. Kings City
13. Oak Flat Water District
14. Tulare Lake Basin Water Storage District
15. San Luis Obispo City Flood Control & Water District
16. Santa Barbara City Flood Control & Water Conservation District
17. Antelope Valley-East Kern Water Agency
18. Castaic Lake Water Agency
19. Coachella Valley Water District
20. Crestline-Lake Arrowhead Water Agency
21. Desert Water Agency
22. Littlerock Creek Irrigation
23. Metropolitan Water District of Southern California
24. Mojave Water District
25. Palmdale Water District
26. San Bernardino Valley Municipal Water District
27. San Gabriel Valley Municipal Water District
28. San Gorgonio Pass Water Agency
29. Ventura City Watershed Protection District