Pain of California’s Water Shortage is Spreading

June 26, 2014

The Sacramento Bee

Downey Brand partner, Kevin O’Brien, is quoted in The Sacramento Bee regarding the recent order by the State Water Resources Control Board ordering irrigation districts to stop using junior water rights.  He is quoted in regard to the impact the curtailment order has on the agricultural industry. 

See full article below or view it online at the Sacramento Bee,

By Matt Weiser for the Sacramento Bee

In the small community of Outingdale in rugged El Dorado County, neighbors Mary Callahan and Steve White confess they used to leave the water running while brushing their teeth. No more.

Now, in addition to turning that tap off, they have stopped filling outdoor birdbaths and cut back on landscape watering. They bathe less and take “Navy showers” when they do, collecting the outflow in buckets and jugs as they wait for the water to heat up. They tell their visitors to live by these rules as well.

Outingdale is one of the first communities in Northern California to know what the worst drought since 1977 really feels like. Residents have been told by the El Dorado Irrigation District, their water provider, to consume no more than 68 gallons of water per person per day. That’s about one-third of the state average. Their use is being monitored by water meters at each home.

Millions more Californians could find themselves in a similar situation as the drought continues into the sweltering months of summer.

“It’s not a pleasant thing that’s going on here,” said Callahan, who retired to Outingdale with husband, Dennis, about 15 years ago. They recently asked their daughter and three young grandsons to cancel their annual summer visit because there isn’t enough water to go around. “It breaks my heart because I don’t get to see them very much.”

Outingdale, founded in the 1920s, consists of about 150 small homes on the flank of a forested canyon alongside the middle fork of the Cosumnes River. Residents enjoy more than a mile of riverfront access, including shaded beaches and deep, clear swimming holes that create a cool refuge amid the hot Sierra Nevada foothills.

That river is also their only source of tap water. Thanks to a state water right held by the El Dorado Irrigation District, the river is piped into two holding tanks, treated with chlorine, then delivered to homes and fire hydrants.

The water rationing in Outingdale was imposed because the State Water Resources Control Board ordered the irrigation district to stop using that water right. It is one of more than 9,500 so-called “curtailment” orders imposed on junior water rights – those awarded by the state after 1914 – to cope with the drought.

The district continues to pipe Cosumnes River water to the homes in Outingdale, albeit at drastically reduced levels. The curtailment order allows exemptions in cases where there is no other water supply for health and safety purposes. The water district set the 68-gallon limit because that is what the state Department of Water Resources estimates is the minimum necessary for cooking, bathing and other basic personal needs.

“Everything is different,” said Steve Mensik, another Outingdale resident, who says he is flushing the toilet less and showering less often. “If it gets any worse by the time the end of summer gets here, this could not be a pleasant place to be around. I say that jokingly.”

The water-rights curtailments are the first ordered by the state on such a massive scale since the drought of 1976-77. That was the worst drought California has ever seen. But state officials are concerned the present situation will eclipse that.

“We know this year is going to have the worst impact of any drought in modern times,” Felicia Marcus, the water board’s chairwoman, said during a meeting in Sacramento last week that focused on the state’s poor progress on water conservation so far this year. “If it doesn’t rain this winter, it’s going to be way worse. So we’re staring at a disaster of incalculable proportions.”

Thousands Fail to Comply

The state’s curtailment orders follow procedures set in old California water law. The rules require that in times of scarcity, “senior” water rights – those awarded before 1914, the year California adopted its system of water regulation – must be given priority access to any water that’s available. As a result, junior diversions were ordered halted or reduced. It was a simple matter of following the law.

But compliance so far has been poor. According to data presented to the water board Tuesday, only 26 percent of affected water-rights holders statewide even bothered to acknowledge the curtailment by submitting a required form within seven days.

Among those who did return the form, 169 claimed they need to keep diverting because their water right is the sole source of supply for health and safety purposes, as in Outingdale’s case. But most did not submit enough information to support the claim, and the water board is now following up to verify their needs.

Officials also have begun field inspections to confirm curtailments are being followed. It is a monumental task to inspect nearly 10,000 water rights across a state as large and rugged as California. The water board normally has about 22 employees assigned to such work, although it has been reassigning other employees to assist and plans to borrow help from the Water Resources and Fish and Wildlife departments.

It will prioritize the workload by starting with large diversions and situations in which particular streamflow conditions are known to be critical.

The vast majority of water users affected by the curtailments are agricultural users who can fallow crops, pump groundwater or buy water from a neighbor.

Kevin O’Brien, a water law expert and partner with the Sacramento law firm Downey Brand, has heard from a great many clients in the agricultural world who received curtailment orders and are wondering what to do.

“In a couple cases, clients went ahead and planted crops on the assumption there would be enough water to get through the irrigation season,” O’Brien said. “I would say they’re very concerned about the possibility of losing a crop. At the same time, I think there’s a general understanding that this is how the (water rights) priority system is supposed to work.”

In most cases, farmers anticipated curtailments and reduced their planted acreage weeks or months ago. Many also have other water supplies to draw on.

For example, Maine Prairie Mutual Water District in Yolo County was ordered to halt a junior water diversion serving about 30 farmers. But it also has senior water rights stored in Lake Berryessa, so water continues to flow. “To some people it is a big deal, but to us it’s not,” said district manager Don Holdener.

The effect of the curtailments takes many forms. The small community of Michigan Bluff in Placer County is among the areas affected. The Gold Rush-era town, at an elevation of 3,500 feet, is home to about 50 people.

Almost all get their water from individual wells. But the town relies on four junior water rights for fire protection, all located on small, unnamed creeks in the American River watershed. The water is diverted into tanks that pressurize fire hydrants.

Michigan Bluff Water Co. owns the diversions and the hydrant system but has essentially disbanded, said Gary Hall, the last president of the organization. That happened about five years ago, he said, when most residents began using their own wells for domestic water, a result of stricter treatment standards imposed by the state on water diverted from the creeks.

But because the nearest fire engine is 15 minutes away, the water diversions remain essential to the community.

“It’s the only fire protection we have, and we’ve had some close calls in the past where we had to evacuate the town because of fire,” said Hall, who voluntarily checks the hydrant system periodically to ensure it still functions. “It is an important water source. But at this time of year, probably the biggest inflow we have is maybe half a gallon a minute, so you can see how far that would go to provide any fire protection. Almost nil.”

Doing the Right Thing

Even the California Department of Forestry and Fire Protection had water rights curtailed by its sister state agency. Cal Fire was told to stop using eight diversions in the Sacramento and San Joaquin river watersheds. Spokeswoman Janet Upton said three are critical to firefighting operations, and Cal Fire will ask the water board for permission to continue using them.

Two of those diversions serve large staging areas where inmate firefighting crews assemble and camp during big fires: Ishi Conservation Camp in Tehama County, and Mt. Bullion Conservation Camp in Mariposa County. In addition to domestic water when the camps are occupied, the diversions are used to fill water tanks on fire trucks.

The third serves Forest Ranch Fire Station in Butte County, where the water diversion meets an array of needs, from cooking and cleaning to filling fire trucks. It also serves Platt Mountain Fire Lookout, which is staffed during high fire danger.

Upton said Cal Fire officials are hopeful the exemptions will be granted. In the meantime, the agency has adopted aggressive water-conservation measures at all its facilities.

“We have lots of dead lawns and lots of dirty fire engines throughout the state,” Upton said. “The only thing they’re cleaning are the windshields for safety, and they’re using water caught in buckets in the shower.”

That will sound familiar to Outingdale residents. Steve Leiker, for instance, is washing his dishes in just enough water to fill a large bowl set in the kitchen sink. The dishwasher has been idled and now serves only as a drying rack. He estimates his household is using only half of the 68-gallon daily limit set by the water district.

“I’ve always taken quicker showers than my wife, so she finally broke down and asked me how do you do it,” Leiker said. He schooled her in the time-tested “Navy shower”: rinse off quickly, turn off the water and lather up, then a fast final rinse.

“We’ve incorporated some good ideas. I think we’re doing the right thing,” Leiker said.

El Dorado Irrigation District has a number of senior water rights in a variety of streams that it uses to serve other customers in its service area, which stretches from El Dorado Hills to Pollock Pines. But none are close enough or properly connected to serve Outingdale. The community has limited groundwater resources, so backup wells are not an option.

The middle fork of the Cosumnes – the river the town relies on – normally flows fast and cold all summer, thanks to ample Sierra snowmelt. But this year the snowpack is already gone, and the river is a relative trickle of its normal flow. Leiker said looking at the river makes him think it’s August, not June: The water is about 3 feet lower than normal for this time of year.

Longtime residents recall that the river dried up completely during the drought of 1976-77. They worry about what’s to come over the long, hot summer ahead.

“Oh, my heavens, I don’t even want to think about it,” Dennis Callahan said. “If that river runs out of water, I guess they’ll have to truck in water. It’s a tough situation.”