Tampering With Water Rights Could Increase Costs in California

Commentary As I’ve mentioned before, “In California, whisky is for drinking and water is for fighting,” according to a quote attributed to Mark Twain. Your water costs soon could be going up even more. That’s because the state is looking to “fix” the current complicated system. Here’s the title of the Los Angeles Times’ “unbiased” news story on March 6: “‘A foundation of racism’: California’s antiquated water rights system faces new scrutiny.” For the L.A. Times, is everything “racism”? Even a water system that provides potable water at a reasonable price to almost 40 million Californians and the state’s vast farm system? Apparently. Here’s how that “news” story starts: It’s an arcane system of water law that dates back to the birth of California — an era when 49ers used sluice boxes and water cannons to scour gold from Sierra Nevada foothills and when the state government promoted the extermination of Native people to make way for white settlers. Today, this antiquated system of water rights still governs the use of the state’s supplies, but it is now drawing scrutiny like never before. Inevitably, “equity” came up. As I have written a couple of times in The Epoch Times, “equality” is Martin Luther King’s judging everyone “by the content of their character.” But “equity” is a socialist spoils system favoring certain groups over others. The L.A. Times article quotes Elizabeth Salomone, manager of the Russian River Flood Control and Water Conservation Improvement District: “The system is deeply flawed in addressing equity. We need to examine the degree to which water rights are linked with wealth, power and privilege.” That’s a surefire recipe for boosting everybody’s rates even higher, while increasing overall hatred. Current Water Law Let me explain how ludicrously complicated and preposterously expensive overhauling this system would be, especially if based on “equity.” As one of my freelance writing gigs, from 2010-11, I wrote and did research for Susan Trager, a water lawyer and a great person, who unfortunately died in 2011. By then I had been writing about California politics since I came to write editorials and columns for the Orange County Register in 1987—23 years. But I found out I knew little about how important, and how complex, California water law is. Trager said it takes a minimum of 10 years after law school for an attorney even to get his or her feet wet in this specialty. Some lawyers spend 40 years on one case, because cases can take that long and drag on and on. I helped her work on the Antelope Valley Groundwater Cases (note the plural), begun in 1999, involving parts of Los Angeles and Kern counties. The O’Melveny law firm provided an update two years ago. Legal submissions commonly run to thousands of pages from not just two sides of the case, but many. Then the judge and his assistants take months, even years, to pore over what was submitted. One case can be a long career for a judge, too. When he or she retires, the new judge can take months to become familiar with a case. But here was the kicker: The system actually worked well. The state water courts preside over the jurisdiction of the state’s system for pre-1914 water rights, as upheld last September by the California Court of Appeals—although the state appeals courts of course have ultimate authority. Most of the parties are private-property owners, who own the water rights under their property, which can be sold to others. But other parties include state and local governments, even the federal government. Moreover, the 1952 McCarran Amendment, passed by the U.S. Congress, put suits concerning water rights in state courts, even if federal property is involved. In Trager’s Antelope Valley Groundwater Cases, that meant involvement with Edwards Air Force Base, which had to make the state court happy. Although ultimately, of course, new federal legislation could modify any particular case or settlement. This legal system also involves a waterfall of different underwater laws, the State Water Project, the Central Valley Project, the Colorado River, desalination plants, Indian tribal lands, federal lands, reservoirs, dams, water bonds, and other factors. Not to mention the controversies over the Delta, including whether to build a Delta Conveyance under it, because of the complicated mix of salty sea water with inland water. Jerry Brown’s Expensive Reforms Then in 2014, amid one of the state’s recurring droughts, Gov. Jerry Brown signed a tidal wave of bills to give the state more direct control over underground water, making matters even more complex. Reuters reported at the time: All groundwater plans must achieve sustainability within 20 years of adoption, and local agencies managing them must report to the state Department of Water Resources every five years. … Some agricultural companies and farm groups had argued against the bills, which they called hastily written, saying they would impose rigid guidelines

Tampering With Water Rights Could Increase Costs in California

Commentary

As I’ve mentioned before, “In California, whisky is for drinking and water is for fighting,” according to a quote attributed to Mark Twain.

Your water costs soon could be going up even more. That’s because the state is looking to “fix” the current complicated system. Here’s the title of the Los Angeles Times’ “unbiased” news story on March 6: “‘A foundation of racism’: California’s antiquated water rights system faces new scrutiny.”

For the L.A. Times, is everything “racism”? Even a water system that provides potable water at a reasonable price to almost 40 million Californians and the state’s vast farm system? Apparently.

Here’s how that “news” story starts:

It’s an arcane system of water law that dates back to the birth of California — an era when 49ers used sluice boxes and water cannons to scour gold from Sierra Nevada foothills and when the state government promoted the extermination of Native people to make way for white settlers.

Today, this antiquated system of water rights still governs the use of the state’s supplies, but it is now drawing scrutiny like never before.

Inevitably, “equity” came up. As I have written a couple of times in The Epoch Times, “equality” is Martin Luther King’s judging everyone “by the content of their character.” But “equity” is a socialist spoils system favoring certain groups over others.

The L.A. Times article quotes Elizabeth Salomone, manager of the Russian River Flood Control and Water Conservation Improvement District: “The system is deeply flawed in addressing equity. We need to examine the degree to which water rights are linked with wealth, power and privilege.”

That’s a surefire recipe for boosting everybody’s rates even higher, while increasing overall hatred.

Current Water Law

Let me explain how ludicrously complicated and preposterously expensive overhauling this system would be, especially if based on “equity.”

As one of my freelance writing gigs, from 2010-11, I wrote and did research for Susan Trager, a water lawyer and a great person, who unfortunately died in 2011. By then I had been writing about California politics since I came to write editorials and columns for the Orange County Register in 1987—23 years. But I found out I knew little about how important, and how complex, California water law is.

Trager said it takes a minimum of 10 years after law school for an attorney even to get his or her feet wet in this specialty. Some lawyers spend 40 years on one case, because cases can take that long and drag on and on. I helped her work on the Antelope Valley Groundwater Cases (note the plural), begun in 1999, involving parts of Los Angeles and Kern counties. The O’Melveny law firm provided an update two years ago.

Legal submissions commonly run to thousands of pages from not just two sides of the case, but many. Then the judge and his assistants take months, even years, to pore over what was submitted. One case can be a long career for a judge, too. When he or she retires, the new judge can take months to become familiar with a case.

But here was the kicker: The system actually worked well. The state water courts preside over the jurisdiction of the state’s system for pre-1914 water rights, as upheld last September by the California Court of Appeals—although the state appeals courts of course have ultimate authority. Most of the parties are private-property owners, who own the water rights under their property, which can be sold to others. But other parties include state and local governments, even the federal government.

Moreover, the 1952 McCarran Amendment, passed by the U.S. Congress, put suits concerning water rights in state courts, even if federal property is involved. In Trager’s Antelope Valley Groundwater Cases, that meant involvement with Edwards Air Force Base, which had to make the state court happy. Although ultimately, of course, new federal legislation could modify any particular case or settlement.

This legal system also involves a waterfall of different underwater laws, the State Water Project, the Central Valley Project, the Colorado River, desalination plants, Indian tribal lands, federal lands, reservoirs, dams, water bonds, and other factors. Not to mention the controversies over the Delta, including whether to build a Delta Conveyance under it, because of the complicated mix of salty sea water with inland water.

Jerry Brown’s Expensive Reforms

Then in 2014, amid one of the state’s recurring droughts, Gov. Jerry Brown signed a tidal wave of bills to give the state more direct control over underground water, making matters even more complex. Reuters reported at the time:

All groundwater plans must achieve sustainability within 20 years of adoption, and local agencies managing them must report to the state Department of Water Resources every five years. …

Some agricultural companies and farm groups had argued against the bills, which they called hastily written, saying they would impose rigid guidelines on farmers while failing to address needs of agricultural water users in the Central Valley.

“While there is legitimate concern about the over-drafting of some groundwater basins, this massive expansion of state authority will not solve the problem,” said Connie Conway, the Republican Minority Leader in the state Assembly.

In Los Angeles, a four-tiered water rate schedule was instituted in 2016 by the Los Angeles Department of Water and Power. For “Tier 1 Basic Use,” the rate was $4.61 for July. For 2022, the rate for July was $8.02. That was an increase of 74 percent in six years.

For the highest rate, “Tier 4 Excessive Use,” it was $7.20 for July 2016. For July 2022, it was $10.71. That was an increase of 49 percent in six years.

By contrast, in that time the inflation calculator from the Bureau of Labor Statistics showed only a 23 percent price increase.

Whatever the intent of the increased state control of California’s water supply in 2014, it has not caused prices for consumers to go down, but to go up. Even more government control, especially if based on “equity,” likely would increase water prices even further.

As old Mark Twain might say, it’s enough to make anyone skip the water and go straight for the Jack Daniels.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.