Wednesday, August 19, 2015

On the Pretentiousness of Senior Water Rights in California

California water regulators proposed a record $1.5 million fine on July 21, 2015 against the Byron Bethany Irrigation District (BBID) in the Sacramento-San Joaquin River Delta. The agency claimed that the district had defied cutbacks that the California Water Resources Control Board had ordered by diverting water from June 13 through June 25. The complaint said that Byron Bethany had consumed an estimated 2,056 acre-feet of water[1] in spite of the fact that the agency had imposed a 25 percent mandatory cutback in urban water use and cuts to major agricultural interests.[2] I contend not only that the district’s board put the interest of a part ahead of the good of the whole (i.e., the common good), but also that the board did so out of a sense of entitlement based on the sheer longevity of the water rights in the district.

The district’s diversion of water up-stream was at the expense of the farmers down-stream. Due to difficulties overall in obtaining water, farmers in California fallowed an estimated 542,000 acres (220,000 hectares) of land in 2015.[3] Almond growers planted new trees nonetheless; almonds are a premium cash-crop there. Even so, both those growers and the siphoning water-district put their own private interests above competing private interests (i.e., other farmers) as well as the good of the whole. 

California’s government was managing water overall in the fourth year of a severe drought. The task was difficult even without self-aggrandizing water-users, and the actions of the latter made it even more difficult, and thus detracted from the public good. Accordingly, the government’s decision that the fine could be as high as $5.1 million if the case goes to a hearing is justified even though the threat is manipulatory in nature.

The mandated water-cuts pertained even to farmers with water rights going back nearly a century. The Byron Bethany district fell into that category.[4] This point played a significant role in the district board’s decision to keep the spigots open for a week. Russell Kagehiro of the BBID reacted to the proposed fine by stating, “The state board is choosing to make an arbitrary example out of B.B.I.D. at the expense of our customers and the communities their hard work supports.”[5] Significantly, he added that the district “will vigorously defend its right to water and due process. The landowners and others that rely upon B.B.I.D.’s senior water rights deserve no less.”[6] That he emphasizes the district’s rights to water—indeed, senior water-rights—says quite a bit about his rationale in taking the water. In short, the underlying mentality is that of presumed superiority over not only other districts, but also the republic of California.

That California is a semi-sovereign republic in the U.S. means that the member-state has the authority to manage the water within its borders unless the U.S. Government claims preemption. Whether or not the California Government can legally override long-held water-rights is a matter for a court to decide. If that government granted the rights, then it could retract them unless doing so would violate the California or U.S. constitution. Absent such a violation, a right is a function of government or else natural. In this case, the rights are presumably contractual and thus rest on a governmental rather than a natural basis. It is in virtue of sovereignty that a government can unilaterally cancel even a contracted right, for sovereignty itself means that no higher authority exists. In modern federalism, governmental sovereignty depends on the domain in question.

Because California’s government was dealing with a drought-crisis, a strong state-interest is satisfied in overriding even long-standing water-rights within California. Moreover, given the water-crisis, the cuts had a rational basis. According to this analysis, the California Government was on solid—indeed, parched—ground in fining the district. Complementing this conclusion is the more damning observation that the district’s unilateral diverting-action based on senior water-rights reflects not only a sordid selfishness, but also a related lack of concern for the welfare of others and even for the public good. Put another way, from the severity of the water-shortage as the context, a presumptuous mentality can be derived.

By analogy, had the first-class passengers on the Titanic insisted on extra room on the limited number of small boats at the expense of the men without such senior rights (i.e., passengers not in first class), the captain would have been well-justified in stepping in to order that the boats be filled to capacity for the good of the whole. That the sense of entitlement of some might actually sabotage not only the livelihoods of others, but also the good of the whole is a testament to just how squalid the mentality is.

[1] An acre-foot is the amount of water that would cover a square acre up to a foot high.
[2] Adam Nagourney, “California Farm District Accused of Diverting Water,” The New York Times, July 21, 2015.
[3] Reuters, "California's Drought Will Cost the State $2.74 Billion This Year, Report Finds," The Huffington Post, August 18, 2015.
[4] Nagourney, "California Farm District."
[5] Ibid.
[6] Ibid.