Water, wine and marijuana

Newspapers across the West have been replete with stories about California’s water woes. But almost all those reports – including my recent GOAT post - focus on California’s Central Valley where farmers from the North (the Sacramento Valley), the South (the San Joaquin Valley) and the Center (the Sacramento-San Joaquin Delta) compete with municipalities, wildlife refuges and endangered fishes for a water supply which is insufficient this year to fill the region’s reservoirs.

Central Valley water issues center on the mammoth Central Valley Project managed by the federal Bureau of Reclamation and the equally large State Water Project. Water issues in the remainder of the state are dominated by smaller federal, state, municipal and private water developments. And while they are no less controversial these other water conflicts have not been extensively reported even by local and regional media.

Nevertheless, these other water conflicts are arguably just as important to the future of California as high profile Central Valley conflicts. Here then is a brief description of one California water conflict which may erupt into public and media consciousness over the next year:

The area between San Francisco Bay and the Oregon Border includes the wine counties of Marin, Napa, Sonoma and Mendocino as well as Humboldt and Del Norte Counties where the timber and marijuana industries dominate.  In the wine counties a petition by Trout Unlimited early in the new century focused on reversing the progressive dewatering of Northcoast streams and rivers which support ESA-threatened Coho and other salmon. This led to passage by California’s legislature of AB 2121 in 2004. The law directed California’s  State Water Resources Control Board (SWRC) to “adopt principles and guidelines for maintaining instream flows in coastal streams from the Mattole River to San Francisco and in coastal streams entering northern San Pablo Bay” on or before January 1, 2008.

The Water Board has not completed the task. They did come out with a Draft policy in 2008. The draft policy favors a “collaborative” approach that brings together water diverters to find ways to restore Northcoast stream flows. This is the approach favored by Trout Unlimited;  it fits in well with the fishing groups national approach which favors collaboration;  TU’s chief operating officer, Chris Wood, has advocated for collaborative approaches on this web site.

But the Draft Policy – and Trout Unlimited’s support for “collaboration” with the wine industry – has created controversy and conflict within the environmental and fishing communities. Led by the Redwood Chapter of thy Sierra Club, several local environmental groups say that “collaboration” with those who are illegally diverting Northcoast streams will not restore streamflows. These folks are pushing for straight-up enforcement of applicable Water and Fish & Game Codes.

Some observers believe the Water Board and lawyers who staff its Water Rights Division are not willing to take the political heat that would be involved if they enforce California’s water rights codes. That is because enforcement would involve busting at least some of over 1700 illegal dams, ponds and water diversions which are known to exist and have been mapped in Northcoast California’s wine and marijuana growing country.

No one knows for sure how many of the illegal dams, ponds and diversions are associated with vineyards and how many are related to marijuana farms. But this promises to be a bone of contention as the illegal water use issue heats up. The Farm Bureau and law enforcement are eager to put the blame on marijuana farming while many in the know say new and expanded vineyards are the main culprit. Both assertions may in fact be correct with vineyards the bigger culprit in the counties immediately north of San Francisco Bay and marijuana growing further north.

How the AB 2121 policy plays out also has statewide implications. The legislature and SWRCB both see the AB 2121 process as a template for how water rights enforcement will be approached state-wide. Currently the SWRCB has a policy for water quality enforcement but no policy on enforcement of water rights and illegal water use. The Board’s staff point out that they have few resources for enforcement while the number of illegal water use cases is large and growing.

At some point the State of California is going to be forced into dealing with illegal water use. Climate change – which is expected to reduce water supplies across California – may be the final bucket of water that breaks the dam of inaction. When it does bite the enforcement bullet, California will also have to deal with groundwater extraction which affects surface flows; at present California along with Texas are the only western states that do not regulate groundwater use.

One option for dealing with the current lawlessness would involve changing the entire water rights system. That course has been suggested recently by both California’s Legislative Analyst’s Office and by a variety of experts.

Changing the rules of the game could provide the Water Board with a means to entirely avoid cracking down on unpermitted water appropriation.  That option looks more attractive the longer California officials delay dealing with a problem that continues to grow larger and more difficult to remedy each year.