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Law & Politics

When California in 2014 restricted water rights for the first time in 40 years, one facet of the order received little attention: Officials had almost no ability to enforce the rules quickly enough to make any difference.

The agency responsible for the order, the State Water Resources Control Board, is significantly understaffed. It typically takes years for the bureau to address a routine water diversion complaint. And now it was adding an emergency order requiring some 10,000 water rights holders across the state to stop pumping from rivers and streams. The board had only about 24 employees to ensure compliance. It planned to ask for help from two other state agencies, but they were also massively understaffed.

This is just one flaw in California’s management of its water laws during the worst drought in state history.

Another cropped up later in 2014, when the board ordered more than 400 large urban water agencies across the state to cut their water consumption by 20 percent. Those agencies missed the 20 percent target in every month but one over the succeeding year, because very few imposed penalties or even monitored customers. Their customers — millions of homeowners and businesses — at best received written warnings if they missed the target, but even these were rare.

Things have improved somewhat since then. In May 2015, the state water board stepped up its conservation demands by ordering large water agencies to reduce their consumption by an average of 25 percent. This time the order comes with a threat of fines. In June, the results were in: California achieved a 27 percent water savings. But not all water agencies reached their conservation targets. About 140 large water providers, or one-third of the total, did not reach 25 percent. Those that missed by more than 5 percent could face penalties, although none had been levied by the end of August.

Groundwater regulation is another area of concern. Although groundwater accounts for about 38 percent of California’s total freshwater demand in a typical year (more during droughts), the state left it virtually unregulated until 2009. Even then, a new law merely required well owners to report the water elevation in their wells, not how much water they extracted or for what purpose. In 2014, the hardships of the current drought prompted state lawmakers to go further. A new law requires well owners to ensure their groundwater extraction is “sustainable,” meaning no chronic depletion. But the law gives them 25 years to comply. It also includes a secrecy provision: The public is not allowed to know which well owners are violating the law.

California water law is a mashup of regulations, many written in the early 1900s and not updated since. One of the first principles to understand, especially in a drought, is the difference between a water right and a contract.

First, a basic concept enshrined in the law: Whether water right or contract, the water itself belongs to the public. No one owns water outright in California. It belongs to the people at large.

A water right is a legal entitlement to divert water from a river or stream. It is often compared to property ownership, except a water right doesn’t extend to owning water. Rather, it is an exclusive legal authority to collect or divert water at a specified place and time. Under state law, the water must be put to a “beneficial” use, such as growing crops, and cannot be wasted.

In California, water rights are issued and regulated by the State Water Resources Control Board. The board requires regular payment of fees to maintain water rights, but the water itself is generally free. A water right amounts to guaranteed water access, except in rare cases of extreme drought, when the water right may be curtailed.

A water _contract_ is subordinate to a water right and is a very different thing. The holder of a water contract has an option to buy a specified quantity of water, but only when available. It is not a guarantee. When available, the water will be sold on a quantity basis, usually per acre-foot or at a gallons-per-minute rate. These contracts are usually served by a middleman that holds a water right, like the U.S. Bureau of Reclamation, for the purpose of storing water in a reservoir and then distributing it to others. In droughts, when water is in short supply, a water contractor may get less water than their full contract allocation, or none at all.

For example, an agricultural irrigation district that buys water from Reclamation doesn’t own that water. Yet it may be very good at crying hardship during a drought, and may even claim they’ve been cheated out of water. But their contracts don’t guarantee any water.

This is where politics often comes into play. During droughts, those who go without water have politics as an option. Over the past year, for example, farmers in the San Joaquin Valley have pressed federal officials to give them more water by amending the Endangered Species Act. The act requires requires water to be reserved for protected fish species, including salmon and smelt. Loosening those rules could free up water for crops.

As it stands now, endangered fish have a stronger legal right to water than farmers who hold Reclamation contracts. Society has decided that helping irreplaceable wildlife species survive extreme drought is important. The farmers have options to get water from other places, including underground aquifers and willing sellers who may have a surplus. They also have access to crop insurance and federal disaster relief. Fish don’t have those options.

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