COUNTIES STEP UP AS NEW GROUNDWATER LAWS TACKLE A CLASSIC TRAGEDY OF THE COMMONS

By Patricia McBroom

        “Picture a pasture open to all,” where each herdsman strives to keep as many cattle as possible on the commons, an economist wrote almost 50 years ago. The rational choice for each individual is to add more animals to his herd without regard for the welfare of neighbors, and they all do that as they march inexorably toward mutual destruction – the “Tragedy of the Commons” as described by Garrett Hardin.

       “Each man is locked into a system that compels him to increase his herd without limit – in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all,” Hardin wrote in Science Magazine in 1968.                                                                               

Groundwater infiltrates subterranean rock, creating ancient reservoirs
         credit: mercola.com                                                                                         

Groundwater Commons    

         By far, the largest, most important commons in California is the water beneath our feet, and it is well on its way toward ruin. Large basins beneath the valley floors contain up to ten times the capacity of all the state's reservoirs put together (42 million acre feet). They are uncharted and boundless, subterranean streams of water flowing among the rocks in mysterious, unexpected ways from one region to another. And they are shrinking.

       In these years of drought, a giant sucking sound could be heard throughout the Central Valley as farmers pumped ever more water from the rocks beneath the earth.  The deeper the drill, the more ancient the layers. As they pumped, the land sank, along with the water table. In some areas of the San Joaquin Valley, only the biggest, wealthiest farmers could go deep enough to reach the water, and they did, leaving their neighbors literally in the dust with dry wells. Surface land in portions of the San Joaquin Valley sank by up to ten inches in just six months of this year, from May to October.

California has 515 groundwater basins (dark grey) in
ten hydrologic regions (outlined)   

     100 years of Exploitation

  Californians have been exploiting this commons for 100 years with precious few restrictions. There has been no statute governing its use. The only law that even affects groundwater pumping has come through case law when a property owner sued another for infringing on his rights. In these rare instances, judges have ruled that a property owner's right to pump water from the ground is not unlimited. Neighbors have rights as well – called correlative rights – and any one property owner can only take his fair share of the safe yield. But aside from this case law – of which the particulars are hard to determine (what is “safe yield” from an uncharted basin?) – the state has never imposed any limits on groundwater pumping.

       That is now changing.

First Statute to Govern Commons

       Next month, in January, the first written law governing this commons will go into effect, a statute requiring local groups to create sustainability agencies that will be charged with bringing depleted groundwater reservoirs into balance. If locals don't do it within the next few years, the state's water board has been empowered to come in and correct the balance. This is the first time in California's history that state authorities (other than courts) have given themselves the power to stop a property owner from taking water from beneath his land. But it will be a while before such power comes into play.

        The first opportunity to restrict pumping will be January of 2020, the deadline for passage of a local sustainability plan, said David Orth, manager of the Kings River Conservation District in the San Joaquin Valley and member of the powerful California Water Commission which will be making decisions on surface and groundwater storage with new state bond money approved by voters this year.

King's County's Dave Orth surveying a
recharge pond

       “A lot of things can happen in five years and that concerns me.... but this problem doesn't lend itself to a quick fix,”said Orth. “Any attempt tomorrow to restrict groundwater use, or even to set fees is likely to lead to a legal challenge. We have to be patient and recognize that it took 100 years to get here. It will take at least 20 to get out of it.”

Counties Stepping Up

       Meanwhile, county supervisors in the San Joaquin Valley are stepping into the breach to find various ways to halt the overdraft in their local groundwater basins. It's an urgent issue in counties like Merced, Stanislaus, Madera and Kern where lands are sinking and wells are running dry. Farmers are split, some opposing any restrictions; others calling for a moratorium on extraction.

       “Before, farmers were united against doing anything,” said Sarge Green, a program director from the California Water Institute at Fresno State, who is helping counties write groundwater ordinances. “Now they are being damaged by each other, and it has created a powerful incentive to do something. You have farmers saying, 'I don't want my neighbor to export water to another county or build a giant well that dries up mine'.”

       The issues are so contentious that a groundwater lawsuit in San Luis Obispo County had to be moved to Santa Clara County last month because no one was neutral in the county of origin. San Luis Obispo supervisors had passed a moratorium last year on new well drilling from the Paso Robles groundwater basin and the county is now being sued by 35 plaintiffs. They argue that no official can restrict their right to pump whatever they need.

Land subsidence from May to October, 2014, from Merced to Corcoran
shows deepest subsidence (red) near El Nido and Corcoran

   

 Local Variability  

 Elsewhere, Madera and Kern counties both considered a moratorium on pumping and rejected the idea. On the other side of the issue, Stanislaus County passed an ordinance restricting people from certain unincorporated areas from extracting water without a permit, while Merced County is considering a similar ordinance that would also restrict export of water from the county.

       Merced supervisor Diedre Kelsey said she became aware of the need for county action when she discovered that two individuals from her district were trying to pump local groundwater and sell it to buyers in another county. “We may need an immediate moratorium,” she said.

       The issues are complicated.

                Agony and Creativity in Reaching for Sustainability

       In Kings county, Orth and others are striving to create a sustainability plan, bringing farmers together to expand land devoted to recharge basins – areas where water can sit for several weeks to soak into the aquifer below. They have even tried flooding grape fields with 18 inches of water for two months during the dormant season. In that case, they came out ahead of the game with a bumper harvest. They're now looking at how long they can leave water standing in an orchard, anything to build the recharge capacity of an area where agriculture is outrunning available water.

       Orth estimates that the Kings area is farming about five percent more land than can be sustained with current water supplies. “Our strategy is to make every bit of that up with flood water (recharge) and voluntary water conservation to avoid land retirement,” he said, adding that the state as a whole is over-farming by a significant amount and will have to retire some agricultural land, if it cannot replenish the underground aquifers.

Merced County Supervisor Diedre Kelsey:  "We may need
a moratorium." Credit: Patricia McBroom

       Land retirement.

      “That's the word that everyone is trying to avoid,” said Juliet Christian-Smith, climate scientist with the Union of Concerned Scientists. “Everybody is bending over backwards to not have that conversation (about land retirement) right now,” said Christian-Smith. Instead they are talking about moratoriums and ordinances, data and analysis:

       “ 'How much groundwater are we using? How much is being replenished naturally? What do we need to do to reach the level of sustainable yield? What does proportional reduction look like? Should we buy out landowners?' They have to figure out what has gone on so far.” said Christian-Smith.

        Can Californians learn to cooperate in this commons and not take more than their “fair share” of a “safe yield”? It's a good question. Some people may cooperate voluntarily; others will no doubt need the police powers of the state and counties before they stop taking their lion's share of precious water.

       Meanwhile, the cavalry is coming over the hill.

DELTA OUTFLOW HOVERS AROUND ZERO, MAKES WATER TRANSFERS RISKY; INCREASES LEVELS OF SALT IN ESTUARY

By Patricia McBroom
      
       There is no fresh water flowing out of the Delta on this early July day in summer and hasn't been since May, new data is showing. The only water surging in and out are the salty tides, which continually threaten fish and fresh water pumps serving people throughout the state.

USGS acoustic Doppler devices near Rio Vista bridge
keep track of fresh water outflow from Delta channels

      This is the apparent condition of the Delta, according to state-of-the-art flow monitors operated by the USGS in four locations near Rio Vista and Brannon State Park (among others), where fresh water meets salty and becomes brackish. 

       Official estimates of outflow, however, calculate that about  4,000 cubic feet per second (cfs) of fresh water is flowing into the Bay – admittedly low, but not zero, which would have important implications for managing water in this drought. State-generated outflow estimates are not based on the above USGS monitors, though it has been obvious for at least a year that there is a significant difference in dry years between the two methods of calculating flow.

Small Differences Matter During Drought

      In wetter years, a small disparity such as 3,000-4,000 cfs would not amount to much. This year is different. Drought is taking a huge toll in both northern and southern parts of the state. In the usually wet north, streams and rivers are near dry. The meager snowpack in the northern Sierras hit its runoff peak in April, not July, as usual. Ground water tables are sinking, not just in the San Joaquin Valley, but in some northern counties as well. Farmers throughout the state with junior rights have been ordered to stop diverting water for their thirsty crops.

      Under these conditions, sales of water from north to south – normal at this time of year –become problematic, even when the sellers are willing. And the condition of the Delta, through which the transfer waters must flow, is critical.

Suits Aims to Stop Transfers

Biostatistician Thomas Cannon challenges State outflow
estimates in environmental suit. Credit: Patricia McBroom

      Hoping to stop water transfers of 175,000 acre feet, approved by the U.S. Bureau of Reclamation this spring, two environmental organizations have filed suit in federal court. They requested an expedited hearing to halt the transfers that are scheduled to begin this month. Plaintiffs charge that the Bureau did not do a proper environmental analysis before approving the transfers, and the flow monitors maintained by the USGS in the Delta are poised to play a staring role in the case.

      “Their totals (measuring delta outflow) have been near zero since May,” said Thomas Cannon, a biostatistician whose work is cited in the lawsuit by the California Sportfishing Protection Alliance and AquAlliance. I've never seen it this salty up here,” said Cannon on a recent day in the Delta, waving his arm toward the docks at Brannon State Park.  Based on his analysis, the suit charges that the dayflow method used by State and Federal water officials “grossly overestimates actual Delta outflow” during dry years.

 USGS technician repairs an outflow monitor
at Three-Mile Slough in June.
Credit: Patricia McBroom

      If the outflow is truly as low as the USGS monitors indicate, it means that salt water is constantly threatening to move up the estuary and that a number of fish species, including the iconic longfin and delta smelt, are at risk of being carried into the export pumps which carry water to the south of the State.

Accuracy of USGS Monitors Challenged

      Difference, however, does not establish worth. The man in charge of water operations for the State Water Project in California's Department of Water Resources, John Lehigh, challenges the idea that USGS monitors are more accurate than state estimates.  “I have seen no evidence that would lead me to conclude that this estimate of outflow (using USGS monitors) is more accurate than the one used now.” said Lehigh. He added that if someone thinks he has a better way to measure outflow, that person should bring the issue to the attention of the State Water Board. So far, no one has done that, he said.

      Lehigh also questioned whether the monitors located in the lower Delta, closer to the Bay, can truly detect outflow in the presence of tidal flux. Outflow in drought conditions (3,000 cfs, for example) is miniscule compared to the huge tides (150,000 cfs or more) that daily wash in and out of the lower delta.

Science panel Validates New Outflow Estimates

      Apparently, USGS scientists have been able to account for the tides, because a report to the Delta Science Program in February demonstrated that last year's salinity levels in the Delta matched the USGS outflow meters. Not so the estimates used by the state (called NDOI for Net Delta Outflow Index), which judged outflow to be more than twice as high as the USGS monitors in the fall of 2013.
 “The NDOI estimates appeared to be clearly incorrect,” said the science program's final report (page 15) released in May. The report went on to say that Delta outflow did not meet minimum standards last year and questioned why the better outflow measures are not being used now.
     For this blog, a member of the expert outflow science panel, retired USGS engineer Pete Smith, calculated the difference between the two measurements for May and June this year (see graph). 

By official estimates, fresh water outflow from the Delta is about 4,000 cfs; USGS monitors show that outflow to the
Bay vacillated between minus 6,000 cfs and plus 6,000 but the average for May and June was close to zero.
Graph by Pete Smith

                        The same disparity that was evident in 2013 showed up again this year. NDOI estimates were way higher than outflow as measured by USGS monitors. Whereas California officials believe outflow in the Delta is around 4,000 cfs this summer, the actual figure measured where the Delta meets the Bay is about zero.  In light of these findings, the State Water Board will be looking at "possible changes in determining outflow," said SWRCB engineer Rick Satkowski.

Delta Smelt Not in Normal Habitat

      So what does this complicated science all mean?

      One possibility is that famous Delta fish species – the delta smelt and longfin smelt– could go extinct this year. Smelt follow a salt line called the X2 because they prefer brackish water. Normally the smelt are in Suisun Bay by the end of June, but this year they seem to be still swimming around in the central Delta, near Brannon. In addition to using possibly inaccurate measures of outflow (thus not releasing sufficient water from the reservoirs), the State has also relaxed its salinity standards this summer, bringing the X2 boundary further upstream. This means the precious few smelt that are left after years of decline are now directly in line of the pumps that take water south.

      “This year, the only delta smelt anyone's been able to find are in the Delta,” said Michael Jackson, an environmental lawyer who has filed public trust suits against the State in past years, but is not involved in this one.

Four USGS stations monitor outflow where Delta water enters the Bay;
official outflow monitors are located further upstream toward Sacramento
and where rivers enter the Delta.

      “Because there is no outflow, the only flow will be toward the pumps. Since transport goes right through the area where the last smelt are, it seems like we have put a tremendous amount of money and pain into preserving the fish, only to end up exterminating the species this year.”  Jackson said there is nothing in the Bureau of Reclamation's environmental report on water transfers that recognizes the threat to delta smelt.

Northern Communities also at Risk

      Nor is there anything that recognizes the danger to communities, farms or ecology in California's north, said Barbara Vlamis of AquAlliance, one of the plaintiffs. She said that the Bureau has simply asserted that no environmental harm will be done to northern areas selling the water, calling the assessment a “cheap and shoddy version of NEPA” (National Environmental Policy Act).

“Why are we selling water out of the north when the area will be rationing this summer? By percentage of normal precipitation, the north has been hit harder this year than the south,” said Vlamis.

      (Bureau officials have been making “temporary” one-time transfer decisions for years, thereby obviating the need for a full-scale environmental analysis on any one of them. The environmental suit is challenging this practice.)

Salt Levels Due to Affect Pumps

      Another thing zero flow means is that salt contamination of pumps that bring water to people in Contra Costa County, as well as southern parts of the State, will climb throughout the dry summer months. When salt rises too high, however, the Contra Costa Water District can dilute it with fresh water from Los Vaqueros Reservoir, so there is no imminent threat to urban areas. Too much salty water in the southern Delta could, however, stop the water transfers regardless of the outcome of the pending legal case.

      Who gets the water – if it goes through – is unknown. Buyers and sellers are anonymous until contracts are written. But if history and rumor are any guides, most of the water is destined to reach Westlands, the wealthy corporate farmers in Kern County, known far and wide for their political muscle in bending state and Federal policies to their private needs. And that's a shame. It is bad enough that these toxic lands, which release selenium into the waterways, get watered in wet years. It's a travesty when they get to use water during a drought like this – water that is critically needed to save the ecosystem and hold the salt at bay for the rest of us.  

CALIFORNIA'S WATER STORAGE CRISIS: THE BATTLE AT TEMPERANCE FLAT

By  Patricia McBroom

        Down the spine of California's Sierra Nevada mountains south of Yosemite, huge granite peaks stand shoulder to shoulder more than 13,000 feet high, with no passage through them. Only hikers can cross the rugged range for more than 200 miles.

Banner Peak and Thousand Island Lakes mark the headwaters of the San Joaquin
River in the Ansel Adams Wilderness.    Photo by Alex Breitler

       These tall mountains – the Southern Sierras – extending from the San Joaquin River watershed east of Fresno to the southern edge of Sequoia National Forest, epitomize California's erratic water supply. In wet years, so much water pours down the mountains that its volume would scare the daylights out of any creature without wings. In drought years,  meager streams cannot fill the reservoirs.

A Year Like No Other

      “This year, no one has water” said Mario Santoyo, assistant general manager of Friant Water Authority near Fresno, a unit of the Federal Central Valley Project that provides irrigation for 15,000 farmers in eastern San Joaquin Valley. “The public has no idea how bad this is going to be....there will be nothing,” said Santoyo glumly. Friant Dam distributes water to more than a million acres of fertile fields that lie mostly east of highway 99, from Madera to Kern County. The area produces more crops per volume than any other in the nation.

      Behind the dam, Millerton reservoir was dangerously low as of Feb. 7, and Friant's managers were scouring the state to find more water. We were on a boat on Millerton, touring the site of a proposed new dam, Temperance Flat, that could rise at the back end of the lake, more than doubling storage in the reservoir. (Because of its position in low hills, Friant Dam cannot be raised).

A Dam You Love or Hate

The proposed dam at Temperance Flat (red) would hold 1.2 million acre
feet of water, extending another 16 miles up the river behind the current
Friant dam (in gray and pictured at top) Credit: Patricia McBroom

      Temperance Flat is one of the most controversial storage projects in California. Farmers want it; environmentalists oppose it; Federal officials have left it on the shelf for years. But this year, in the wake of California's epic drought year, the project is alive and well. Like nothing else, these months with no precipitation have driven home the awareness that California does not have enough water in storage to get through really bad dry periods.

      Friant farmers are particularly vulnerable this year, which helps explain why President Obama is coming to Fresno on Friday, along with Senators Dianne Feinstein and Barbara Boxer, who introduced drought-fighting legislation in Congress this week. The Senate bill counters a bill passed in the House by Republicans last week that would roll back the historic San Joaquin River restoration project, among other ill-considered features.

      A bit of background is needed to understand the stakes involved here and in the state at large. Nowhere do the competing forces of agriculture and ecology seem more tightly balanced than on the San Joaquin River at Friant.

Bright Dream; Original Sin

      Seventy years ago, the U.S. Bureau of Reclamation built this dam as the centerpiece of a hydraulic revolution in the San Joaquin Valley. By capturing the unpredictable waters of the San Joaquin watershed, Friant dam and its associated canals gave rise to an agricultural cornucopia, the pride of California and a major source of the nation's produce. Unfortunately, it also brought about one of the most painful chapters in California's water history, a history already full of painful chapters. The story is told in a moving account, The San Joaquin: A River Betrayed, by former McClatchy reporter Gene Rose.

The Federal Central Valley Project in Fresno created two separate rivers.

      In laying the concrete for this farming miracle, engineers completely reversed the flow of the San Joaquin River. They sent its waters moving south to Kern County instead of north to the Delta. The river that inspired John Muir disappeared within months. Salmon runs abruptly ended. Landowners along the course of the northern-bound river lost their water, among other deleterious effects.

      Today, the historic San Joaquin River disappears about 40 miles down from the dam, leaving a 60 mile stretch of nothing but dry sand. What ends up in the Delta, although called the “San Joaquin River”, is recreated every year out of mostly agricultural runoff that rotates repeatedly through the state water system. Its water comes with a bad mix of pesticides and tons of salt, including dangerous levels of selenium. Because it salts up the land, the recreated San Joaquin River threatens the survival of the agricultural marvel Friant Dam helped to inspire.

An Historic Win for the Ecology

A stretch of the once magnificent San Joaquin River, has
 been dry for 70 years. With restoration releases, it shows
a meager stream of new water. Bureau of Reclamation

      In one of the longest running legal cases of its kind, the Natural Resources Defense Council won a settlement seven years ago that forces the Friant Authority to release enough water into the old channel to restore the river and restart the salmon run. Environmentalists don't want any more water – not even flood waters – to be held behind any dam on the San Joaquin River. Besides, they claim, farmers already take up to 95 percent of the watershed's precipitation. Do they have to have the last .05 percent? Can't they let even one drop reach the ocean?

      Ronald Stork, policy director at Friends of the River, which helped win the restoration case in 2007 calls Temperance Flat a “dead beat dam.” He said there isn't enough yield from a new dam, over what is already taken, to justify its cost of about $3 billion. And, he added, that extra water will hardly make a dent in what farmers are currently pumping, leading to depletion of the aquifer, so its value in recharging ground water is limited.

The Case for Farmers

      Santoyo strongly counters such arguments. Flipping charts to show that flooding dramatically increased in the second half of the 20^th century, Santoyo illustrated how much water is lost to agriculture. In 16 out of 35 years, from 1978 to 2013, Friant released water it could not store because Millerton is too small. In each of eight of those 16 years, more than 1 million acre feet were released – enough to irrigate Friant lands for about a year. Most of the flood releases went downstream into the old San Joaquin riverbed and eventually reached the Delta. But sometimes the water went everywhere.

Friant's Mario Santoyo: "I couldn't
move the water."

      In 1997 (the year that Yosemite Valley flooded), a rain-driven cascade of water came down the San Joaquin canyons that stunned Santoyo. It came so fast and in such volume (120,000 cubic feet per second) that no mere dam could hold it, certainly not Friant. It was like a football stadium full of water plunging into the reservoir every second, he said.

      Reclamation officials urgently called Santoyo: 'Can you move the water!?' they asked. “I couldn't,” he said. “There was no way I could move that much water through our canals.” The water simply flowed over the dam and down into the valley. “We needed a (bigger) reservoir to hold it back,” said Santoyo.

A Challenged Dam in an Era of Climate Change

      Environmentalists argue that a flood like the one in '97 does not occur often, and that's true. But climate change science predicts increased flooding from rain in the Southern Sierras. And Friant is not built to handle incredibly fast, big floods that happen over a few days, as they do in a “pineapple express” or “atmospheric river,” as these warm rains are called.

Chart shows higher peak flows in the San Joaquin during 20th century,
 from 1905 to 2005. Photo from the Friant Water Authority

      Unlike other reservoirs in the central/southern Sierras, like the two million acre feet Don Pedro Lake to the north, or the one million acre feet Pine Flat reservoir to the south, Millerton holds only 500,000. It works more like a diversion basin than a reservoir, in that it channels water immediately into the Friant-Kern and Madera canals. By this means, it sends most of the water –1.8 million acre feet – that comes down the mountains onto the fields.

Who Gets the High Water?

      But if Friant clients use most of the San Joaquin River water now, why put themselves into big debt building another dam? At most, Temperance Flat would increase their yield by 150,000 to 250,000 acre feet per year – not overly impressive. (Formal predictions on actual yield have yet to be released in feasibility studies.) One answer is that farmers are eager to store flood waters for use during dry periods and Temperance Flat would give them that flexibility.

      But the flood waters are exactly what environmentalists want to use in restoring the San Joaquin River downstream.

     “We want to get back to a healthy river,” said Kathryn Phillips, director of the Sierra Club California. She said the river needs more flow than the amounts contributed by the restoration agreement with Friant. “If you want groundwater recharge along the river, if you want a balanced ecosystem, then you have to let the river flow. Temperance Flat will not help that; it will harm it.”

Will the Salmon Run?

      Water policy officials like Randy Fiorini, chair of the Delta Stewardship Council, have reached the opposite conclusion. Charged with the responsibility of striking a balance between water deliveries to humans and protection of the ecosystem, Fiorini said he thinks the reservoir at Friant Dam is too small.

      “I've always been one to believe that if the upper San Joaquin is to be successfully restored, the Fresno reservoir needs another million acre feet of storage.” Only then, he said, can the state meet its co-equal goals on the east side: to provide both irrigation water in dry years and in-stream flows for fish.

      Santoyo hopes other Californians will agree with that point of view and support a state bond in 2014 that he expects will allocate money for studies at Temperance Flat. Aside from a drought, the one thing that scares Friant people most is being hauled back into court, losing more water because the salmon don't run. And they won't run if the water isn't cold enough. Millerton is a small, often warm lake, said Santoyo.

      “We just don't have the volume of cold water we need to restore the salmon. It's a high priority for us. We have to succeed in bringing back the salmon.”