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Commentary: Growing food is essential, reasonable use of water

Issue Date: July 21, 2021
By Chris Scheuring

Agriculture was deemed essential when the COVID-19 pandemic prompted shelter-in-place orders last year. It’s no less essential now, even as some people question the water-rights system.
Photo/Lisa Lieberman

Amid historic heat and drought, California's rivers and creeks dwindled early this year. Many, if not most, of our reservoirs are at exceptionally low levels. And this year we are faced with a novel challenge: The evidence suggests that snowmelt increasingly evaporates or soaks into the ground before reaching reservoir systems.

Our water supply difficulties deepen, and demand bold policy initiatives.Chief among them is addressing the need for new infrastructure and water storage to accommodate hydrology that is likely to be more rainfall-based and may result in longer dry spells punctuated by more intense, if shorter, wet periods.

One thing it does not do, however, is require reorganization of water rights. Quite the contrary. In fact, the state's water rights system is fundamentally conceived to deal with scarcity in dry years, including this one—by providing for a hierarchy of priority upon which to base necessary curtailments. In fact, that system really only exists to deal with scarcity.

Most farmers and ranchers understand that we didn't get much snowpack and precipitation this year, and that means reduced water availability in a lot of places. What is unprecedented is the thought that agricultural water use should, in times of scarcity, be labeled an "unreasonable use" of water.

This broad label, recently at issue in proceedings regarding emergency curtailment regulations in Mendocino and Sonoma counties, now becomes a potential sweeping new tool in the state's menu of drought and water rights management options.

There is, of course, a requirement in the California Constitution that all water use is reasonable. Article X, Section 2, approved by California voters in 1928, was intended to reform an imbalance between the protection of riparian rights at the expense of appropriative rights.

It's important to note that that particular constitutional provision also calls out California's basic hydrology —think variable, and think semi-arid in most places—and requires that the water resources of the state are also "put to the beneficial use to the fullest extent of which they are capable."

If anything, the concept of reasonable use speaks to the need for balance in water use, against the backdrop of the need to make it productive. Yet we saw this doctrine used by regulators to constrain farm water use in the last drought, and we are now seeing a troubling expansion of this approach in the current drought.

From a water rights standpoint, it's a show-stopper. But there is nothing balanced about calling farm water use unreasonable. Not if you are expecting to resort to your local Safeway or farmers market in the way that all of us do.

Over the last year, shutdowns and early panic buying triggered mercifully brief but deeply frightening food supply disruptions at grocery stores. This brought into vivid focus just what it is to be considered an essential industry and how critical California agriculture is to the Golden State and the world at large. How do we reconcile that representation to this new relegation of agricultural water use to an alleged "unreasonable" use?

Is it reasonable to hamstring food production through unnecessary and expansive use of a legal doctrine that is amorphous at best, when the likely alternative sources for that displaced food supply will lead to worse environmental outcomes?

Let's be clear: There's no doubt that, in many places, we are brutally short of water this year.

That's precisely where we look to our water rights system to go to work. However, while short-term curtailments based upon honest water availability analysis and solid administration of our water right priority system are one thing, wholesale, ham-fisted deployment of a subjective legal concept may leave us with a bell we can't unring.

Again, I am mindful of where we were a year ago during the shelter-in-place requirements for COVID-19.California's farmers and farm employees stayed at the helm during that storm, when so many others went below decks. It wasn't easy to be "essential" then, but there they were.

That's why it's hard to draw a line from farming being an "essential" undertaking last year to this year's allegation of "unreasonable use."

(Chris Scheuring is senior counsel for the California Farm Bureau. He may be contacted at cscheuring@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.




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