Growing food is essential, reasonable use of water
ByChris Scheuring Amid histor ic heat and drought , California’s rivers and creeks dwin- dled early this year. Many, if not most, of our reservoirs are at exceptionally low levels. And this year we are faced
brief but deeply frightening food sup- ply 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 repre- sentation to this new relegation of ag- ricultural water use to an alleged “un- reasonable” 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 environ- mental 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-termcurtailments based upon honest water availability analysis and solid administration of our water right priority system are one thing, wholesale, ham-fisted deploy- ment of a subjective legal concept may leave us with a bell we can’t unring. Again, I ammindful of where we were a year ago during the shelter-in-place requirements for COVID-19.California’s farmers and farmemployees stayedat the helm during that storm, when so many others went belowdecks. 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 “un- reasonable use.” (Chris Scheuring is senior counsel for the California Farm Bureau. He may be contacted at cscheuring@cfbf.com.)
with a novel chal- l enge : The ev i - dence sugges t s that snowmelt in- creasingly evapo- rates or soaks into the ground before reaching reser- voir systems. Our water sup- p l y d i f f i cu l t i e s
Chris Scheuring
deepen, and demand bold policy initia- tives.Chief among them is addressing the need for new infrastructure and wa- ter storage to accommodate hydrology that is likely to be more rainfall-based and may result in longer dry spel ls 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 wa- ter rights system is fundamentally con- ceived 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 sys- temreally only exists todeal with scarcity. Most farmers and ranchers under- stand that we didn’t get much snow- pack and precipitation this year, and that means reduced water availability in a lot of places. What is unprece- dented is the thought that agricultural water use should, in times of scarci- ty, be labeled an “unreasonable use” of water.
Agriculture was deemed essential when the COVID-19 pandemic prompted shelter-in-place or- ders last year. It’s no less essential now, even as some people question the water-rights system.
This broad label, recently at issue in proceedings regarding emergency cur- tailment regulations inMendocino and Sonoma counties, now becomes a po- tential sweeping new tool in the state’s menu of drought and water rights man- agement options. There is, of course, a requirement in the Cal i fornia Const i tut ion that all water use is reasonable. Article X, Section 2, approved by California vot- ers in 1928, was intended to reform an imbalance between the protection of riparian rights at the expense of appro- priative rights. It’s important to note that that partic- ular constitutional provision also calls out California’s basic hydrology —think variable, and think semi-arid in most places—and requires that the water re-
sources 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 inwa- ter 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 farm- ers market in the way that all of us do. Over the last year, shutdowns and early panic buying triggered mercifully
VOL. 48, NO. 27
July 21, 2021
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