Paper Water Woes
Water Rights, Water Use, and Who’s Paying for it
By Nick Joslin, Forest & Watershed Program Manager
We continue to track several large-scale funding awards and requests where the paper water rights, not the actual usage, are used to begin water math equations that portray post-project benefits that will leave leftover water in the stream. Benefits in the form of taxpayer funding continue to be handed out to irrigation operations that base the stated benefit to the environment using paper water rights.
Water “Rights”
The intersection of water law and environmental benefit is extremely complicated. While a water right holder is allowed to put their entire paper water right to “beneficial” use, the full paper water right is rarely entirely used. Old water rights were given out during a wetter time in history, during the mid-1800s and early 1900s. Some of the earliest water rights pre-date California statehood, so regulating them has been extremely difficult. They are essentially grandfathered into environmental regulation compliance.
Many areas around the state have more promised paper water than exists in the watershed, so most water rights holders only use what is available to them in any given water year type. In theory, during wet years, an entire water right may be exercised, but during dry years less water should be used to avoid environmental harm. However, it doesn’t work this way because there are no minimum instream flow recommendations in the state, so in dry years rivers can be entirely consumed by water rights holders. We have previously written about how dry rivers in the Scott and Shasta Valleys led to the first instream flow recommendation that the state has made. The state is currently deciding whether to extend the regulations through the next summer since they are set to expire mid-summer.
The Water Equation
So a paper water right forms the basis of an equation where the theoretical water usage is a value higher than actual water use. When a water rights holder is ready, a grant proposal is submitted using the equation, the funded projects will engineer for actual water use and the post-project environmental benefit is overstated. Projects proponents now commonly overstate the environmental benefit to secure funding and yet no actual benefit shows up in the river.
Our Take
We can agree that some of these projects are good and should be funded, but we also believe that taxpayers deserve to know how much water they are actually paying for. The state currently does not analyze whether these deals lead to “wet water” in the streams. We can find almost no cases where the benefit can actually be measured with measuring devices in the streams, keeping the benefit only in “paper water”.
Complicating the whole concept is the Public Trust Doctrine which covers the notion the public collectively “owns” the resources within the state. We already “own” the water in the streams and rivers so, when taxpayers are left to buy the resources back from water rights holders in the form of grants, we absolutely deserve to have fair, honest, and accurate water math accounting. We do not currently get what we pay for because of the complexities of water and environmental law. We are working to slowly change that.