Re-centering the Golden State’s Water Rights on the California Constitution
Policy Issue
California has been labeled the “hydraulic society” due to its dependence on infrastructure to move water (Williams, 2018); however, friction is created due to the inverse relationship of water supply and the demand dynamics. “Nearly 75 percent of the available surface water originates in the northern third of the state (north of Sacramento), while 80 percent of the demand occurs in the southern two-thirds of the state (“California water overview,” n.d.). California’s “water war involves dozens of specific agricultural and municipal water agencies and environmental groups, each with a particular stake in the outcome [,] … ‘water buffaloes’ — and their perpetual jousting is a lucrative industry for lawyers, lobbyists and public relations operatives” (Walters, 2022).
“The geographic disparities have been remedied [,] … by building one of the most complex and sophisticated flood management, water storage and water transport systems in the world” (“California water overview,” n.d.) that includes more than 1,400 large dams and many smaller ones, as well as thousands of kilometers of aqueducts (Williams, 2018).
To quench the thirst of the South, California draws water from the North through the State Water Project (SWP) and the Central Valley Project (CVP) using the following methods: (1) taking water from the San Joaquin River, the 2nd longest river in California, to the point where the river goes dry; (2) draining aquifers to the point where the surface of the earth is collapsing; (3) siphoning water from the Sacramento system in the north and the Delta; and (4) by taking water from the Trinity River in the Klamath Mountains which is located over 130 miles further up north from the Sacramento River (Morrison, 2021). To add, water is transported from the Colorado River near Lake Havasu in Arizona, west along a 242-mile system of canals, to the Los Angeles area (“Colorado River aqueduct map,” n.d.).
Policy Solutions, By Priority
Addressing the multi-faceted issues requires a comprehensive set of solutions to protect the uniqueness of the Northern, Central, Coastal, Desert, and Southern California ecosystems, while at the same time, supporting the robust economic engine, sustaining the agriculture industry, and increasing the quality of human life that, by policy priority, should include: (1) re-establishing the Constitutional protection of water as a public resource, not a private commodity; (2) renegotiating riparian and appropriated water rights within the state, especially the Kern Water Bank, and with other users of the Colorado River to the east, and with Mexico to the south (Alskaf, 2016); (3) building additional desalination facilities along the California coast, and concurrently increasing the use of wastewater (brackish water) for agriculture and urban landscaping — a strategy that in 2013, helped Israel declare water independence from weather (Siegel, 2015, p. x); (4) reducing agricultural water use through strategic crop selection (Siegel, 2015, p. 116); and (5) conserving urban freshwater use through tiered pricing models (Orobello & Cirella, 2021), mandatory use of no-flush, or dual-flush toilets (Siegel, 2015, p. 90), and more impactful monetary incentives than the current subsidies for desert type urban landscaping.
The proposed solutions and actions will preserve the San Francisco Bay/Sacramento-San Joaquin Delta, one of the largest estuaries in the United States (U.S. Geological Service, n.d.), protect California forest land, ensure sustainable agriculture in the Central Valley, and support the high-revenue producing residents along the California coast.
California’s Economic Power
California is the third largest state in land area, but the most populous U.S. state with nearly 39.2 million residents. In terms of economic power, California is poised to overtake Germany as the world’s 4th largest economy, and is home to 379 companies with a market value of at least $1 billion (“ICYMI: California poised to become world’s 4th biggest economy,” 2022). Approximately 23 million, or 60% of the state’s population lives in Southern California (“Southern California population 2022,” n.d.). The State is one of only five agricultural regions in the world with a Mediterranean-growing climate (“California agriculture,” 2022), and has more forest land than any other state, except Alaska (“Agriculture facts,” n.d.).
The Cost of Sustaining Economic Power
To support its massive infrastructure, California uses 42 million acre-feet per year, or about 38 billion gallons per day which is the equal to the full capacity of Lake Shasta, the state’s largest reservoir, every 40 days (James & The Desert Sun, 2014). The average distribution of water usage is approximately 50% environmental — used for rivers, streams, wetlands, and to maintain water quality; 40% agricultural; and 10% urban (“Water use in California,” 2022). On average, 30 percent of indoor water usage is attributed to flushing the toilet (“Residential toilets,” 2022). Groundwater pumping accounts for 40 percent of the total water supply; however, in drought years, the amount increases to 60 percent (Waller & California Department of Water Resources, n.d.). California has “12 seawater-based desalination plants that produce 89,000 acre-feet of usable water [,] … with an additional 23 groundwater desalination plants that clean 140,000 acre-feet of water annually, with plans for an additional 84,000 acre-feet per year by 2040” (Yachnin, 2022). The largest desalting facility in the Western Hemisphere is in Carlsbad, built in 2015, with a capacity to provide 10% of San Diego’s potable water needs (Williams, 2018).
The process of moving water from its source to the end user is energy intensive and includes: (1) extracting; (2) conveying through canals and aqueducts, and pumping over terrain; (3) storing in groundwater aquifers or in reservoirs; (4) treating; (5) distributing to urban and agricultural users; (6) end-user consumption in homes, places of work, restaurants, hotels, that includes heating, circulating, and cooling; (7) collecting wastewater; (8) treating wastewater; (8) recycling wastewater; and (9) discharging wastewater back to nature (Wilkinson, et al., n.d.). Nearly 20% of the state’s electricity consumption goes toward water-related uses (Spearrin, 2012), of which, the State Water Project has become the largest single consumer of electricity in California (“Producing and Consuming Power,” n.d.). To support water service in a typical Southern California home, it takes between 14% to 19% of total residential energy demand, and even higher for homes without air conditioning (Wilkinson, et al., n.d.).
Squeezed Between Drought Today and Sea Level Rise Tomorrow
The current megadrought in the Western U.S. resulted in the driest two decades in the region in at least 1,200 years (Newburger, 2022), which lowered water levels in the Colorado River, a tributary shared by seven other states, that historically has provided 1/3 of California’s annual needs, for which California maintains senior appropriated water rights of 4.4 million acre-feet of water annually (Yachnin, 2022). San Diego, 120 miles further south of Los Angeles, purchases 85% to 90% of its water from Northern California and the Colorado River (“Water supply,” n.d.). By 2040, it is anticipated that California will lose 10% of its water supply (Newburger, 2022), or six to nine million acre-feet, roughly two to three times the annual consumption of the city of Los Angeles (Vanderklippe, 2022).
To compound the issue, California is affected by sea level rise as the result of “land motion in California, Oregon, and Washington [,] … and most threatened by ice melting in Alaska, due to its proximity to the west coast” (Casiple, 2022). A sea level rise of one foot would cause $15 billion in property damage, impact the jobs of 38,000 people, limit state capacities (Pham, 2022), seasonally affect transportation corridors, agricultural areas, the availability of drinking water, and the strategic capabilities of the Department of Defense…” (Casiple, 2022). Higher sea levels will result in salt encroachment into underground aquifers along the coast, making it undrinkable, and adds salinity to soil, compromising agriculture — similar to the ecological demise of the Sumerian civilization of the Middle East and the Indus River Valley of India (“BRIA 18 4 a Environmental Disasters in the Cradles of Civilization”, n.d.).
California Agriculture
California’s Central Valley is well suited for year-round agriculture because it is protected by the Cascade Range to the north, the Sierra Nevada to the east, the Tehachapi Mountains to the south, and the Coast Ranges and the San Francisco Bay to the west (California Water Science Center, U.S. Geological Survey, n.d.). Its soil is referred to as “Green Gold” and is home to nine of the top 10 agricultural counties in the U.S. — producing nearly 50% of U.S.-grown fruits, nuts, and vegetables, and 62% of the national value of fruit and nut crops (“Agriculture facts,” n.d.). California’s agricultural industry with $49.1 billion in revenue in 2020 (“California Agricultural Statistics Review, 2020–2021,” 2022) is overshadowed by the $473.1 billion finance, insurance, and real estate sector (“GDP by industry California, 2021,” 2022).
Despite that agriculture contributes only 2% to the state’s economy, it is the largest for any state, and in 2017, was more than $19 billion greater than the production of second-place Iowa, and more than twice the production in Texas (Manley, 2017). In the face of the 2012–2016 drought, California farmers brought in record-high revenue from crops as the result of shifting to high-value products such as almonds, pistachios, and wine grapes (James & TODAY, 2015). California produces about 80% of the world’s almonds and 100% of the U.S. commercial supply (“California Almond Industry Facts,” 2016); however, it takes one gallon of water to produce a single almond, for which the 1.8 billion pounds of harvested almonds required 680 billion gallons of water to grow, an amount that is more than three times the usage of the Los Angeles area in a single year (Zenovich, 2017). Even Harvard University has capitalized on the opportunity and became one of the biggest grape growers in California (Valdmanis, 2015) and, on a commercial scale, pumped water from groundwater aquifers for use in its vineyards that has negatively affected the availability of well water for residents (Zenovich, 2017).
California Water Constitution, Water Rights, and Dirty Water Deals
According to Article X, water must be fully put to beneficial use possible, prevent waste, and conservation of such waters is “in the interest of the people and for the public welfare” (“California constitution :: Article X — Water :: Section 2,” n.d.). Founded on the Public Trust Doctrine that dates to Roman law, government is required to hold natural resources in trust and protect them for the benefit of all people (“public trust doctrine — California water impact network,” n.d.). Water rights fall into two categories: (1) Riparian rights, based on ownership of property next to water, include the use of underground water and surface water, such as from creeks, rivers, and lakes (Water rights, n.d.); and (2) Appropriative rights that are “based on physical control [,] … if initiated after 1914, on a permit or license [,] … may be sold or transferred, which unlike riparian rights, long-term storage of water is considered an acceptable exercise of an appropriative right” (“Appropriative rights,” n.d.).
California has had a history of dirty water deals since before its statehood (Zenovich, 2017), including the secret land purchases of the City of Los Angeles in Inyo County that, beginning in 1913, diverted water from Owens Lake to Southern California, and by the mid-1920s, dried up the once 200-square-mile perennial lake (Maisel, 2005). More recently in 1994, during the secret Monterey Amendments, the State gave away California citizens’ water rights to the Kern Water Bank — the largest underground water storage facility in the San Joaquin Valley that the state spent $74 million purchasing and developing — and transferred it to a handful of large, privately owned corporations (Monterey amendments — California water impact network,” n.d.).
Although the Monterey Amendments reduced stress on the Delta and allowed for storage of excess flows during wet years in groundwater banks and surface storage reservoir which could then be used during dry periods (“Monterey amendment,” n.d.), the State removed accountability of water allotments, with which the contractors created “paper water” — water that only exists on paper, that resulted in today’s condition of 5.3 times more water claims than is available (Monterey amendments — California water impact network,” n.d.).
In a move that would repeat the historical demise of Owens Lake in the 1920’s, in 2017, under the guise of protecting the Delta habitat, then-Governor Brown proposed the California Water Fix, a pair of 40-foot diameter tunnels, constructed 150 feet underneath the Delta, that would take 2/3 of the flow of the Sacramento River — the main supply of the Delta (“Save the delta, stop the tunnels!,’ n.d.). Governor Newsome, in 2019, proposed a smaller project (with one 39-foot diameter tunnel), under the narrative that it would improve the reliability of water deliveries directly to the State Water Project, which would essentially bypass court mandated restrictions on pumping water from the Delta — to the State Water Project — during periods when fish are migrating (Rogers, 2019).
Problem Stream Analysis
There are great political stakes in problem definition” (Kingdon, 2011, p. 110). Today the cyclical, persistent drought, and the anticipated reduced availability of water, pushed the integrated water rights, water allocation, and water privatization issue to percolate to the top of the California consciousness. The independent streams of “problems, policies, and politics [,] … has a life of its own without a lot of regard for happenings in other streams (Kingdon, 2011, p. 227), and a condition is not labeled as a problem requiring a solution until there is a mismatch between the actual conditions and the subjective interpretations of ideal conditions (Kingdon, 2011, p. 110). According to Stone, problem definitions are stories with a beginning, a middle, and an end, involving some change or transformation (Stone, 2012, p. 158).
In California, defining the problem of one stream is easy; however, framing the beginning, middle, and end of the ideal water narrative of three separate streams, and mixing them into the policy primeval soup to generate an agenda, alternatives, and proposals (Kingdon, 2011, p.116) that weighs the competing needs of the average citizen, income of small farmers, sustainability of big cities, competitiveness of small towns, dividends and stock value of corporate farms, responsibilities of federal regulators, profits of water contractors, oversight of state regulators, enjoyment of tourists, livelihood of fishermen, passion of environmentalists, sustainment of global food consumers, and revenue of industry that are further spiced-up by the symbolic, emotion-laden words such as — decline, drought, crisis, dissolve, cuts, failure, undermine, heroes, villains, innocent victims, by-gone era of well-being, control (Stone, 2012, p.162) and profits (James & TODAY, 2015) — a conglomerated stream, made up of self-serving and phobic elements, can seem like a Pacific typhoon bent on following only its erratic course, darkening the horizon, devouring everything in its path, dragging items within its reach into the vortex, tossing society’s work into the sky without regard for where it will land, tearing dreams into debris, discarding remnants of what was, destroying what could be, and leaving carnage as its legacy.
Political Stream Analysis
At the state level, powerful business interests have pressured politicians and state administrators into short-sighted solutions. Despite lawsuits from interest groups, the agendas, alternatives, and proposals seem to prefer superficial solutions such as conservation in urban areas, without addressing the unfettered use in agricultural areas. A change in political parties will not make a dent, as lobbyists and managers are fully embedded into the political economy of the water ecosystem. It seems counter-intuitive, but even a state-level crisis brought on by drought will likely not change the prevailing political winds because “the average citizens’ preferences continue to have essentially zero estimated impact upon policy change, while economic elites are still estimated to have a very large, positive, independent impact” (Gilens & Page, 2014, p. 575).
Indicators of an Open Policy Window
Today’s drought, and the threat of less water in the future, provide the best economic, environmental, and political “thirst condition” to push for change in California’s water agenda. Rainy days, and the comfort of “abundance” are the worst periods to discuss a droplet of change in water policy.
Conclusion
“Democratic regimes depend for their very existence on a relatively equal distribution of economic resources [,] … but — (added by this author for emphasis), Aristotle observed that the threat of redistribution posed by the promise of political equality makes democracy intolerable for the wealthy” (Solt, 2008, p. 57).
In this context, fumbling around for solutions based on blaming street-level bureaucrats, guilting urban end-users into extreme conservation measures, while turning a blind eye on corporate influence is futile as proven by the decades of complicit mismanagement.
It is a difficult uphill climb, and it might take decades of political patience, but California must re-center the water issue on the legality of the California Constitution’s stance on water “in the interest of the people, and for the public welfare”, which if remains unresolved, could require the interpretation of the U.S. Supreme Court.
Constitutional finality will untangle the three streams, and when isolated from the primeval soup, the political stream, on its own, will bend, and instead of reacting to the whispers of market forces, will supervise the rate of flow more responsibly and guide the direction of water more equitably.
Copyright Leonard Casiple 2023. All rights reserved.
About the author: Leo Casiple is a first-generation American who grew up in Southern Philippines under martial law. He spent much of his 21-year career in the US Army as a Green Beret.
Leo is currently a doctoral student at Northeastern University’s Doctor of Law and Policy program (2022–2025 Cohort). He earned his education from California Lutheran University (MPPA), ASU Thunderbird School of Global Management (MBA in Global Management), Excelsior University (BS in Liberal Arts, Ethnic and Area Studies), Academy of Competitive Intelligence (Master of Competitive Intelligence™), Defense Language Institute and Foreign Language Center (18-month Arabic Language Course), and the US Army John F. Kennedy Special Warfare Center and School (Special Forces Qualification Course and Psychological Operations Specialist Course).
For more information about the author, click here: Leo’s LinkedIn Profile
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