By Paul Rosenberg, Senior Editor
The satellite photos make it starkly clear: California’s Sierra Nevada snowpack—the lowest ever recorded—is virtually non-existent this year, following a record three straight years of severe drought. The last time a majority of the state was not considered “abnormally dry” or worse was in December 2011, according to weekly data from the Drought Monitor Index. On April 1, Gov. Jerry Brown chose a snow-bare mountain location to announce “an executive order mandating substantial water reductions across our state.”
“Today we are standing on dry grass where there should be 5 feet of snow,” Brown said. “This historic drought demands unprecedented action… As Californians, we must pull together and save water in every way possible.”
But as dire and unprecedented as the current situation is, it is only a foretaste of what’s to come, a change that will force California to reinvent itself once again.
“We’re not going to have that snowpack,” Felicia Marcus, chairwoman of the State Water Resources Control Board, told members of the Environmental Law Section of the California State Bar this past November. “So not only are our reservoirs low, the snowpack is low. If you’re trying to deal with reality in a clear-eyed way, it’s going to take us decades to retrofit ourselves.”
That’s the stark truth behind the recent headlines about California’s record-breaking drought. Whatever anguish, extreme measures, and conflicts we’ve seen so far, it’s only the beginning of a decades-long process, a process some say is equally long overdue.
The overwhelming driver will be the impact of global warming, which many scientists argue is already being felt. Others are less certain, citing natural variations, while still saying that current drought conditions are a foretaste of what a global warming future holds for the state.
Random Lengths News reported in 2014 that for 13 years, more than half the state was under some degree of drought conditions, and that from 2012 until March of 2014, the figures ranged from 87 to 98 percent.
This year however, just about 100 percent of the state has been under drought conditions.
For that story, we interviewed Columbia University’s Robert Seager, whose research was the first to put North America’s medieval mega-droughts on the map.
“Some part of the West has been in or out of drought since 1998,” he told us. Hence, “We are getting up to that 15 year time frame.”
We also spoke with Aiguo Dai, author of the 2010 paper, “Drought under global warming.” Dai said that the American West, particularly the Southwest, had “reversed the course since around year 2000 towards a much drier climate for the foreseeable future.”
One year later, we re-contacted both scientists, as well as Seager’s Columbia colleague, Benjamin Cook, who recently published “Unprecedented 21st Century Drought Risk in the American Southwest and Central Plains,” which predicts that “future drought risk will likely exceed even the driest centuries of the Medieval Climate Anomaly.”
That’s the period Seager first explored in discovering American mega-droughts, which, the paper also notes, “had profound impacts on regional societies and ecosystems.”
All three scientists view the past year as conforming to the pattern of global warming foretelling of what’s to come, rather than saying global warming caused it. The scientists essentially see this structure as a reflection of how causation works in large-scale systems.
“In many ways, the current California drought is a taste of the sort of events we can expect to see with increasing frequency,” Cook told Random Lengths. “The fundamental cause of the current California drought is natural climate variability. Basically, [the] circulation patterns in the ocean and atmosphere have gotten stuck in place and have rerouted storms away from California and much of the West Coast.”
But there’s a difference as well, Cook noted.
“One thing that makes the current California drought really stand out compared to previous droughts is how hot it really is,” he said. “[This is] due, at least in part, to the long term anthropogenic [human-caused] warming trend over the last 150 years. When things are warmer, this amplifies any kind of natural drought impacts because evaporation is higher, making everything that much drier.”
Regardless of precipitation patterns, the heat alone ensures that “we can expect to see more and more really hot years in the future which will mean that, when droughts do occur, they will be that much hotter and drier.”
Cook’s paper—using three drought measures with a suite of 17 models—found that decadal drought risk in the second half of the 20th century ranged from 80 to almost 100 percent in the Great Plains, and from 90 to almost 100 percent in the Southwest. Meanwhile multi-decadal drought risk ranged from about 70 to 90 percent in the Great Plains, and was consistently close to 80 percent in the Southwest for all three measures. So, droughts will almost certainly be much longer, as well.
“Our results point to a remarkably drier future that falls far outside the contemporary experience of natural and human systems in Western North America, conditions that may present a substantial challenge to adaptation,” Cook and his co-authors concluded.
It’s that future, and the challenge to California’s ability to adapt that Felicia Marcus was referring. Random Lengths turned to another published climate scientist, Michael Hanemann, who we interviewed last year for an even more refined look at the challenges from a historical perspective.
In addition to researching economic costs of climate change, Hanemann has a deep background in California water policy, as well as comparative knowledge of what other Western states and Australia have done to modernize their water policy systems in preparation for the coming challenges.
The first thing Hanemann pointed out was that, with just a single exception, California has always responded to droughts by relying on water users to voluntarily take drought-fighting action. That’s what makes Brown’s and the water board’s, under Marcus, use of governmental authority all the more remarkable. Even if the scope of their action is relatively limited, action such as this was virtually unheard of in the Golden State before.
“Before 1914 there was no water rights agency in California. The only mechanism for dealing with water allocation was through litigation,” Hanemann explained.
Most significant were appropriative water rights (originally based on miners working claims on public land) to divert a specific quantity of water from a certain time forward (which makes the issue of “seniority” particularly important). The original controlling agency, the California Water Commission, came into being in December 1914, with authority residing in the State Water Resources Control Board since its founding in 1967.
Although it has authority over water rights, “It has limited authority” compared to similar boards in other Western states, Hanemann said. “One crucial difference is the authority to supervise distribution of water.”
The board registers claims, noting both the amounts and the date they were filed, but it has no power to arbitrate disputes.
“Suppose it’s 1924—that’s a dry year,” Hanemann explained. “Logically you need somebody out there to enforce seniority and to enforce the rights, so you need somebody on the ground to say, ‘Hanemann, you can’t be taking water because Rosenberg has a, senior right.’ You let him take his water first.’ You also need a traffic cop which says, ‘Rosenberg you have a right, but you have a right to 50 cubic feet and you’re taking 60 cubic feet, and that’s a no-no.’”
Hanemann said that without enforcement on the ground, the make-believe system we have now will continue.
Hanemann noted that though other states established agencies with enforcement powers, when California’s agency was set up in 1914, that power was withheld.
“We know this from the historical record; it was withheld because water users objected,” Hanemann explained. There were subsequent requests to grant that authority, “but the legislature never acted on those requests. It still does not have that power today.” The result is “like an intersection with no traffic lights.” The only recourse is individual lawsuits, just one step short of shooting at one another.
The second thing California was missing was a firm handle on the rights involved. Throughout the West, water rights were originally claimed simply by diverting water, and making a note of it on the spot.
“There’s actually no mechanisms for recording this,” Hanemann said. “Literally people would put a stick in the ground by the point of diversion, and put a piece of paper saying. ‘I, Michael Hanemann, started diverting 50 cubic feet a second as of April 8, 1920.’” The shortcomings of this method are self-evident.
“The sticks in the ground don’t always stay in the ground, the paper doesn’t stay there. This is not a system of record keeping. The river might be 50 miles long. So who knows what sticks are in the ground 40 miles upstream from where I am,” Hanemann said.
This system wasn’t unique to California. It began like that throughout the West—and if there were disputes, you sued. But even that was slapdash, at best. “I sued you, there were 10 other water users along the river, they didn’t take part in the suit,” Hanemann pointed out. “It was a really chaotic system.”
Hanemann noted that this was eventually replaced by state agencies handing out new water rights and grandfathering all the pre-existing water rights alongside them. But after a few decades, grandfathering ended as well, and all rights were integrated into a single system.
“California is the only state which still grandfathers the pre-existing [pre-1914] water rights, and we didn’t create our agency, essentially until 60 years after first using appropriative rights, in 1914. So, we have a huge number of water rights that were grandfathered and are still grandfathered to this day.”
Hanemann noted that other western states have an agency with authority over all water rights. In California, water agencies don’t have authority to supervise the distribution of water, at least not unless the water users in the basin requested to do so. That happened in a few cases which did not include major parts of the Sacramento and San Joaquin valleys.
Hanemann noted that California water agencies have no authority over pre-1914 rights, rights that make up over half of the water rights.
Here, Hanemann added another footnote, calling attention to California’s riparian rights (rights to use a body of water adjacent to land you own), which he pointed out are “even more nebulous than appropriative rights” because they are essentially unlimited. The only way they get limited in amount is via a lawsuit. “That happens, but that’s a very rare occurrence, that type of litigation,” Hanemann added.
California experienced the second-worst single drought year even to this day in 1924. Hanemann noted that at the time, the state didn’t have the power to allocate water because its power was limited to post-1914 rights, which in 1924 was only a tiny fraction of the total number of water rights in California. And, so was born the practice of convening meetings of water users and asking them to work things out amongst themselves.
“Basically that’s continued in every other drought until now,” Hanemann said.
Hanemann noted 1977 was the only exception. California was suffering the second dry winter in a row during Jerry Brown’s first stint as governor, and an exceptionally effective leader of the state’s water rights board, John Bryson.
At the time, the board ordered those with post-1914 rights to stop taking water from the Sacramento River. Hanemann noted that this was actually a well-established power—just one that had never been used before.
But pre-1914 rights were another matter, Hanemann explained. In 1977, the water situation was so dire that the board directed those with grandfathered pre-1914 riparian rights to stop taking water.
Hanemann described this as a daring move.
“It had no authority over those rights, and it also didn’t have the enforcement staff on the ground actually to enforce the restriction,” Hanemann said. The board didn’t even have the staff to enforce the restriction on the post-1914 claims where it did have authority.
Nonetheless, “It sent letters to the water rights holders. What happened was, in some cases neighbors and others complained, and said so-and-so is violating your order. The state board [then] sent somebody [on the] ground, but it was more the moral effect of trying to get water users to cut back.”
On top of that, Brown, acting on Bryson’s advice, appointed a high level commission—chaired by a former California Supreme Court Justice—to review water rights in California. Unfortunately for us now, the drought ended, Bryson left the board and Brown’s interest waned, leaving enforcement still stuck in the 19th century. As a result, “In the subsequent droughts, like 1991 and 1992, and then later 2008 and so on, the state board played no role in dealing with the situation,” Hanemann pointed out.
Now, almost 40 years later, Brown has a rare opportunity for a major do-over.
“I think he’s very much learned the lesson of, should we say, his ineffectiveness in his first period in office,” Hanemann said. “The other thing is, Jerry Brown gets climate change. He’s been concerned about it for a dozen years or more. He takes it very seriously.”
Brown is aided by Marcus, another strong board chair, who also enjoys his strong confidence and support. Together, they’ve began modestly cutting off thousands of post-1914 rights holders late last summer. Hanemann called that a “strong initiative,” but was uncertain about what it portended. Now, after another dry winter, it’s “been stepped up with the governor’s order and the events of the last 10 days. That, in my mind, is a big deal. It’s way, way overdue.” But much more remains to be done, including putting an end to grandfathered rights—as all other western states have done.
“As part of adaptation to climate change, we need to start getting our house in order,” Hanemann said. “If we’re not going to start doing things properly in this round, when the hell are we going to adapt to climate change? This is like, when the house is on fire, that’s a time that you better do something about fireproofing.”
In her November Bar Association speech, Marcus explicitly embraced the notion that nothing less than a fundamental re-conceptualization of water policy was at hand:
We’re at this period of paradigm shift. Not to overstate it, but it’s always an uncomfortable period. As in Thomas Kuhn’s Structure of Scientific Revolutions, he says as things are changing, people become very uncomfortable, and it becomes very messy. The old order is somehow changing yet you see these brilliant strides forward and strides backward. We’re just in a difficult time and the drought exacerbates it.
Marcus did not explicitly say how deep that re-conceptualization would go, or what it would involve. At this point, it’s probably impossible to say. But Hanemann did cite three basic steps as a common-sense starting point, just to bring California into the modern era.
First is to create “an accessible database of water rights and legal rulings in California,” including all the appropriate documentation. Complete documentation exists at the county level for post-1914 rights, only, but hasn’t been fully integrated online.
Second is to implement record-keeping to support real-time water management, meaning a record of all water diversions. This has been legally required for decades, but penalties were not introduced until quite recently, so data only goes back to 2012, and reporting is required only every 3 years. It should be yearly, at least, and monthly during droughts, Hanemann said.
Third, the board must be given authority to supervise the distribution of water. This exists only in a very crude, limited, emergency form, without real enforcement power. It needs to be fully formalized and written into law.
Actually, he added a fourth point—the need to verify and consolidate claims, including the resolution of conflicting legal claims, a process called “adjudication,” which can drag on for years and even decades. “It’s been done in many western states,” Hanemann said. “It’s a bonanza for the lawyers,” but it would finally provide clarity as to who has what rights.
As it stands today, claims are so unreliable, so exaggerated that, for example, “the flow of the Kern River was claimed like 30 times over,” Hanemann said. So, “What California needs is an adjudication of the Central Valley, especially the Sacramento Valley,” just to create a reality-based foundation for moving forward and dealing with future challenges.
All these are just practical, common sense changes, but California water rights holders have successfully resisted them for more than 150 years now. Overcoming this resistance is the first hurdle.
But there’s a second hurdle that should also be considered, and that involves a fundamental re-conception of how water policy is handled, down to the very definition of water rights—or possibly even some alternative formulation. Hanemann highlighted the contrast in ways of thinking about the two paradigms.
The traditional, legalistic way of thinking is in terms of water rights, and the senior water rights that agricultural users have, based on their earliest claims. As we’ve already seen, however, those rights are anything but clear cut, well-defined, and even, in many cases, plausible. So the anarchic “Wild West” nature of the system casts the legitimacy of this approach into doubt—not to mention that it’s the holders of the water rights themselves who have insisted on maintaining this state of chaos. Indeed, Hanemann said, the legacy of this approach, historically, “is massively counterproductive.”
In contrast, we need to “step back and…say ‘no, let’s take a modern view of this. We live in a modern society. We have competing needs. We have a population of 38 million people. We have large cities…This is not a sensible way of allocating water.’”
This is a view that makes sense in terms of preparations for dealing with the growing challenges California faces. But it “goes against property rights,” and nobody has the power to simply wipe out all those rights, however questionable they may be.
Yet, something akin to this process has taken place in Australia over the past 25 years, because starting around 1990, a growing sense of urgency emerged that managing water inefficiently was a threat to the nation’s prosperity and well-being. This led to federal intervention and to legislation that never had been contemplated before. However hard it is to envision in advance, it’s conceivable that a whole new approach to designing water policy could be adopted in California at some point in the future.
This wouldn’t be without precedent. Prior to the Civil War, slaves were considered property and this reality made it virtually impossible to contemplate slavery’s end. With slavery’s post-war abolition, things looked completely different. In retrospect, the slaveholder’s “rights” were seen to be more like crimes. No one suggests that water rights are like slavery.
Though seriously flawed, they serve a vital purpose. California’s agriculture is as rare and precious as its tech industry. “We’re one of only five Mediterranean climates that can grow healthy fruits and vegetables and we should honor that,” Marcus said in her speech, “even as we are clear and hard-line and fair and demanding of agriculture to do their part.”
But the system is as archaic as slavery—if not as evil—and in need of a sweeping overhaul to prepare us for the difficult future ahead.
Highlighting this need for forward thinking, Marcus referenced Barbara Tuckman’s book, March of Folly, which, she noted, deals with historical examples—King George losing the colonies, the Vietnam War, etc.—in which those in power had all the facts they needed to solve a problem, but ignored them “by fearing change” that ended in disaster. Heeding this lesson, “We need to be thinking forward,” Marcus said, “and looking at the present through the lens of what our future holds, for better or for worse, and what we can do about it, versus looking at today through the lens of the past and stubbornly sticking to it.”
Highlighting this need for forward thinking, Marcus referenced Barbara Tuckman’s book, March of Folly, which, she noted, deals with historical examples—King George losing the colonies, the Vietnam War, etc.—in which those in power had all the facts they needed to solve a problem, but ignored them “by fearing change,” which ended in disaster. Heeding this lesson, “We need to be thinking forward,” Marcus said, “and looking at the present through the lens of what our future holds, for better or for worse, and what we can do about it, versus looking at today through the lens of the past and stubbornly sticking to it.”