Water & Drought

Delta dispute raises urgent question: Whose water is it?

Video: Breakdown of Delta farmers water dispute during drought

This video explains the water dispute between Delta farmers and State Water Contractors, a powerful consortium of California water agencies that has accused the farmers of essentially stealing water during the drought. Video by Madeline Lear and R
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This video explains the water dispute between Delta farmers and State Water Contractors, a powerful consortium of California water agencies that has accused the farmers of essentially stealing water during the drought. Video by Madeline Lear and R

Driving his pickup along a levee on a recent sunny afternoon, Dennis Gardemeyer looked out over a massive canal brimming with California’s most contested water.

This was Sacramento-San Joaquin Delta water, and Gardemeyer and his business partners have well-established water rights that they have relied on for decades in drawing that water for their crops. There’s an ample supply. The unique hydrology of the tidal estuary means it always has water. It’s why brilliant green fields of potatoes, tomatoes, corn, wheat and wine grapes thrive on the other side of the levee.

“They seem to think that all their problems would go away if we stopped farming in the Delta,” Gardemeyer said.

The “they” Gardemeyer referenced are powerful water agencies representing millions of Californians. The agencies are questioning just how much water Gardemeyer and hundreds of other Delta farmers have a legal right to use, accusing them of illegally diverting potentially billions of gallons of water released from upstream reservoirs and intended for agencies in Central and Southern California that contract for supplies with the state.

As California’s blue-green reservoirs are drained brown during this historic drought, Gardemeyer and other Delta property owners essentially are being accused of stealing. Both sides in the controversy have a heavy stake in how state regulators respond to the complaint. An estimated 25 million people and 3 million acres of farmland across the state receive shipments pumped from the Delta via vast man-made networks operated by the state and federal governments. Half of all the freshwater runoff in California travels through the estuary.

The case marks yet another angry skirmish in the tug of war over California’s depleted water reserves. Further complicating the matter is that nobody can say with certainty how much Delta water is actually being used by Delta farmers. The state allows thousands of water rights holders to divert water directly from rivers and streams, but in most cases has no metering system in place to gauge just how much they take.

Even metering might not solve this dispute, because of the complexities of the estuary itself: a fragile natural ecosystem that’s been replumbed and reconfigured to deliver water to farms and cities to the south and west. Gazing at that canal, Gardemeyer asked: How do you tell the difference between his naturally occurring Delta water and the stored stuff channeled from reservoirs that’s supposed to go to all those people?

Maybe, he said sarcastically, they’ve dyed theirs.

“I don’t know what color their water is,” Gardemeyer said, “but the water I’m looking at out here is the same color it’s been for all the years that I’ve farmed.”

At the heart of the dispute is California’s complex system of water conveyance. The California Department of Water Resources and U.S. Bureau of Reclamation operate the state’s largest reservoirs, including Shasta, Oroville and Folsom. The reservoirs collect mountain snowmelt from the Sacramento, American and Feather rivers and release it to the Delta. There, two giant pumping systems divert it into canals that ship the water west to Silicon Valley and south as far as San Diego.

I don’t know what color their water is, but the water I’m looking at out here is the same color it’s been for all the years that I’ve farmed.

Dennis Gardemeyer, Delta farmer

Questions about just how much water local farmers can draw from the Delta’s channels and sloughs before it reaches those government pumps have flared on and off for years.

“The question has always been: Are they diverting what’s naturally occurring in the Delta?” said Craig Wilson, a former State Water Resources Control Board attorney who also served as a Delta watermaster, overseeing enforcement of water rights. “Or are they poaching water that’s been stored upstream previously and that’s being released into the Delta to be shipped to the south?”

As the drought intensifies, they have come under increasing pressure to justify and account for their use.

Last summer, the DWR and Bureau of Reclamation asked state regulators to investigate water diversion practices in the Delta, saying they suspected farmers were taking water allotted for other regions.

This spring, the State Water Resources Control Board, which oversees water rights in California, ordered hundreds of property owners with claims to water in the Central Valley to prove those claims, sending some Delta families hunting through dusty county records and historical documents that stake their families’ rights.

The latest shot came in June when California’s largest consortium of water agencies filed a formal complaint with the water board against a group of farmers in the southern Delta. The complaint alleges the farmers have been been using between 100,000 and 300,000 acre-feet annually in excess of their water rights. The consortium, called the State Water Contractors, includes the massive Metropolitan Water District of Southern California. The board is still reviewing the complaint.

‘A bucket with a hole’

Stefanie Morris, the consortium’s acting general manager and attorney, contends that, in the extended drought, Delta water would be too salty to use for farming if not for the billions of gallons of fresh water rushing downstream from the Sacramento Valley’s man-made reservoirs. Morris says much of what’s in these flows is stored water that has been purchased by the State Water Contractors.

“We’re not saying our water is commingled with your water and therefore you can’t take it; we’re saying that if our water didn’t exist you would not be able to use the water that would be there,” Morris said.

In arguing her case, Morris points to government inflow and outflow data that show heavier flows coming into the Delta than what washes into the Pacific Ocean or is pumped down to Southern California. “It’s like trying to fill a bucket with a hole in the bottom,” Morris said.

Moreover, she said illegal diversions have forced state and federal dam managers to release extra water from northern reservoirs to maintain the Delta ecosystem and protect endangered fish. In addition to serving their customers, DWR and Reclamation are legally required to release stored water to prevent salinity intrusion in the Delta, which alters water quality in the estuary.

The consortium’s complaint hinges on a long-held legal concept that senior water rights holders in California can draw water only if they put it to “reasonable and beneficial use,” and that no one is entitled to use someone else’s stored water.

“I’m questioning what water is in the Delta that’s available for you to divert that is not storage water,” said Roger Patterson, assistant general manager for the Metropolitan Water District of Southern California.

“There’d be no useable water for diversion, because it would be too salty to use,” Patterson said. “Therefore, you couldn’t put it to beneficial use.”

Central to the counter arguments made by Delta farmers are the rocky levees, such as the one supporting Gardemeyer’s pickup and keeping the water from overwhelming his crops. They contend that the hydrology of the estuary – the very nature of the islands on which they farm – prevents them from stealing water.

“There’s no place to steal it to,” said Stockton attorney George Hartmann, who represents Gardemeyer and other farmers.

That’s because many of the Delta’s 70 islands sit below the waterline, and the levees that ring them act as dams that keep them from filling with water.

I’m questioning what water is in the Delta that’s available for you to divert that is not storage water.

Roger Patterson, Metropolitan Water District of Southern California.

The Delta’s spongy peat soil has helped create one of the most productive agricultural regions in the state, but it’s also caused these islands to sink through a process called soil oxidization. Some are now 20 feet below the waterline. Gardemeyer’s island is one of these.

As Gardemeyer drove along the levee, every few hundred yards his Ford would cross a pumping station. The pumps weren’t siphoning water in for his crops. Instead, they were pushing back into the canal water that had seeped in through the porous soil.

“If we turned our main pumps off,” he said, “this would be a lake.”

Some Delta farmers say they pump off twice as much water than they siphon in for irrigation, which leads to hefty electrical bills. They say all this pumping back into the Delta would need to be considered if the state ever required them to put meters on their intake valves.

They also say that all their pumping and farming is doing Southern Californians a big favor. If they lost their ability to grow crops, the argument goes, they couldn’t afford to run their pumps. Eventually, their bowl-like islands would begin to revert into swampy lakes ringed with water-guzzling weeds. The levees would fail, and the water would become too salty to export.

A gesture of good will

Farmers on the Delta islands have high-priority water rights, known as riparian or pre-1914 rights, that predate the state’s dams and canals. These rights entitle them to divert as much water as they need to grow crops, as long as those diversions are limited to the “natural” flow in Delta channels.

They maintain that when California’s water infrastructure projects were built, they were promised the diversions to downstream irrigation districts wouldn’t impact their ability to make a living.

John Herrick, an attorney representing south Delta farmers, wasn’t shy about pointing this out at a presentation at a recent Water Education Foundation workshop in Stockton.

“When people say, ‘You Delta people shouldn’t be diverting (water),’ I say, ‘Why not?’ ” he said. “Obviously, that creates a lot of resentment in the state when most people have shortages.”

Nonetheless, in a gesture of good will, a group of Delta farmers agreed this spring to voluntarily cut back water use by 25 percent in exchange for the promise of no additional curtailments this summer.

“We’ve basically given 25 percent of our income away for nothing,” said Rudy Mussi, who has fallowed close to 500 acres and reduced irrigation of his grapes and walnuts.

The State Water Contractors group says they aren’t challenging the underlying water rights in the Delta, but that their complaint boils down to fairness.

“We want the state board to make sure that no one is taking stored water that isn’t entitled to it,” said Patterson with the Metropolitan Water District. “Simple as that.”

Attorney Morris said their case was bolstered this month when Deputy Attorney General Daniel Fuchs argued in a legal brief that the Delta would be too salty to farm if not for stored water. Fuchs was responding to four Central Valley irrigation districts that had sued the state water board after it issued curtailment notices to dozens of senior water rights holders in the Sacramento and San Joaquin valleys, saying they no longer could divert water from rivers and streams.

“Under present drought conditions,” Fuchs wrote, “(the districts) do not have a vested right to divert water because under the state of nature, their diversions would not be of sufficient water quality.”

Judge Shelleyanne Chang, however, wasn’t immediately swayed, and issued a temporary restraining order preventing the water board from enforcing the curtailment notices. The judge said the state violated procedure by not giving the districts a chance to defend their water rights. Another hearing on the matter is scheduled for July 30.

Morris said the issue of whose water is in the Delta needs to be resolved one way or the other, because it’s too important for too many people. She said she’ll pursue the case even if rains come this winter and turn the current drought into an unpleasant memory.

“We all need a speed limit,” she said. “And we don’t really know what the speed limit is right now.”

Ryan Sabalow: 916-321-1264, @ryansabalow.