Saturday, July 25, 2015

Water Law 101

Another busy week on the farm: Almonds are down on the ground and melons are coming up out of the ground. We are starting to cut off water in the onions. The sheep are moving off the wheat ground so it is time to break out the tractors and work some ground.
After last week's brouhaha over the State fining a Northern California water district I thought I would dust off an old op-ed I did on water law. My water lawyer friends said it could not be done. Water law was too complex to boil down to one page. Well California water law is dizzyingly complex. But, here are the basic pieces. Please note the original publishing date. Apparently Solomon was right three thousand years ago- there is nothing new under the sun.

Water Law 101
By Paul H. Betancourt
Copyright August 30, 1999

            Mark Twain was right when he said, “Whiskey is for drinking and water is for fighting.” Today’s Californians might prefer a glass of wine, a beer or some healthy sports drink, but we still fight over water. In fact the details of the legal battles since Twain drank his last whisky fills libraries.
            In that mass of legal minutiae are the key principles that shape water law in California. Tracing these principles can help us make sense of what often seem to defy logic.
1850-The California Constitution

The section of the California that deals with water law was last updates in 1976. However the roots go back to the original Constitution of 1850. There are two key points here-

-water users are required to exercise, “Reasonable and beneficial use…in the interest of the people and for the public welfare” (Art. X Sec. 2).
-all water is, “subject to the regulation and control of the
         State” (Art. X Sec. 5).

These two principles are the foundation of water law in California.

1887- The Wright Act

In the 1800s there were numerous lawsuits involving water. Many of these suits revolved around the famous Miller and Lux Land and Cattle Company. Many bills also passed the California Legislature. One of the most important of these bills was the Wright Act of 1887. Named after Modesto attorney-turned legislator C.C. Wright, the Act’s main points were:

-the establishment of public irrigation districts superseded the private districts that had begun to spring up.

-water rights were bound to the land to be irrigated.

-irrigation was defined as a ‘public use.’

1902-U. S. Reclamation Act

The grand-daddy of Federal water law is the 1902 Reclamation Act. In his Autobiography Theodore Roosevelt, the President who signed the Act into law, clearly states the intent of the law was, “reclaiming the vast areas of the arid West by irrigating otherwise useless land, the creating new homes upon the land.”
            It may be hard for us to visualize what the country was like before these Reclamation projects. It is even harder to imagine what the West would be like today if it were not for these projects. Can you imagine the Central Valley without irrigation? It is not just the Valley, LA and San Francisco would not exist in their current form either.
            Whatever criticisms of Reclamation projects there are today, we must remember it was a different age. Their decisions changed the face of the West which they saw as a vast, barren wasteland. Reclamation law has been highly successful in achieving its intent- the West if fertile and inhabited because of irrigation projects.
            The original 1902 Reclamation Law has been updated by Congressional reform in 1982 and in California, in 1992 by the Central Valley Project Improvement Act.

1937- Central Valley Project (CVP)

The CVP was authorized under the River and Harbors Act of 1937. Today it stretches from Shasta Dam in the North to Bakersfield in the south. The project includes 23 dams and reservoirs, hundreds of miles of canals which supply 7 million acres feet to 2.8 million acres as well as providing some water to cities in California’s great Central Valley.

1959- The Burns-Porter Water Act

            In 1960 California voters ratified a $1.75 billion bond to create the State Water Project. A distribution system that could handle the projected needs for the next 60 years was created and storage capacities for the next thirty years was also created. Additional storage was scheduled to be built in an orderly fashion as the need arose.
            Subsequent case law and the beginning of environmental legislation such as the Federal Clean Water Act have had their impact on water law in California.

            May water law attorney friends will be calling after this is published to remind me how inadequate 750 words are to describe the libraries full of water lass and the resulting case law decisions and they are right, in a sense. However, these are some of the basic building blocks of California’s water law.

            Governor Edmund G. “Pat” Brown said, “as long as California continues to grow and develop, each generation will face and must resolve a new set of water problems. At intervals of about 30 years, the dynamic of the state’s development has demanded new appraisals of recently created water needs. Renewed action to meet those needs [is] essential.”

            Until someone wins a Nobel Prize for developing low energy desalinization so we can tap in to the vast Pacific Ocean, we will continue to fight the water wars. It is important for all the players and the public to understand the ground rules as clearly as possible.

Saturday, July 18, 2015

My Farm. My Family and the Drought

Hi there. Sorry I missed last week. It's been a little busy around here. 
   The cantaloupes are planted. The almonds have started to go on the ground. We are spoon feeding the cotton a little fertilizer. The solar system for the house is up and running. One more week of summer school. Go, go, go. 
I am working on a photo book of Kerman history. This is a 1908 steam driven tractor. We've come a long way baby. Where do you connect the GPS on this thing?

By the way, one neighbor noticed a surprise in his property tax bill. He put in a drip system and the tax man raised his property value then raised his taxes. 
   So, let me get this straight- they cut off our water, they beg us to put in drip systems and then they tax us for doing it? Can you at least see why we get a little frustrated?

I was asked by a local daily paper to write a piece on how the drought is affecting our farm. I thought I would share it with you-

My Farm, My Family and the Drought
By Paul H. Betancourt
Copyright July 2015

The roots of our family’s farm go back over one hundred years. Sheryl’s great grandfather came over from Switzerland in 1880. After working as a hired hand in different places around California, he and his family settled in Kerman in 1912. Sheryl’s grandfather farmed fifty acres of cotton and hay. Today we farm 765 acres. This year’s crop includes Pima cotton, wheat, almonds, cantaloupes and onions.

The most common question I have heard over the last year is some variation of, “How are you doing with the drought?” I usually make some crack about, ‘No water? No problems.’ But, it is a problem.

Last year we had to put $40,000 into fixing wells and installed a $112,000 drip system in our orchard. This year we put another $35,000 into fixing a well. Some day I would like to be out of debt. I hear that is nice. In addition to those costs, each year I have had to pay over $40,000 in taxes to support the water district bureaucracy that gives me no water.

Last year the state passed groundwater regulations. They cut off the surface water then find out, “You have a groundwater problem.” I want to jump up and down and yell, “That is why we put the surface water systems in years ago.” My point is not to pick a fight over last year’s groundwater bill. My point is that groundwater is our reserve system. As a farmer we have the wells as a back up system. The first five years I farmed we never turned the wells on. Then we used them during the 1986-93 drought. Then we turned them off. Surface water is higher quality water.
            In addition to the quantity issue, surface water is higher quality than ground water. Groundwater has more salt than the surface water. I cannot tell you how much we would rather not use the wells. They are only for emergency backup.

Drip systems are precise, but they are not simple. They take a lot of management. Instead of having someone in the field once every week or two when we would irrigate the old fashioned way, we have to have someone in the field every day check lines. If the lines are above ground coyotes can chew on them. If they are underground they can pop apart.

            We had all our wells tested last winter. If we are going to have problems I would rather have problems in January than July. We cannot test the well Grandpa put in seventy years ago because of the condition of the well casing. So I am on pins and needles about that one. The others are fine. In fact, one well has come up sixty feet in the last five years. That was a surprise. The only explanation that makes sense is that so much ground has been fallowed that it has allowed the aquifer to re-charge. This does confirm the idea behind last year’s groundwater legislation that there might be a sustainable level of groundwater use. Of course, I will be on pins and needles about that too.


            When I started farmer 34 years ago there were two welding shops within ten minutes of our ranch. The first one closed down a few years ago. The second one closed down last month. There isn’t enough business to keep them open. It may not mean much to you and it isn’t the end of the world for me. But, it is an indicator that the vendors and suppliers I rely on are slowly fading away.

How the Drought Affects My Future

We are looking at how to change our crop mix. I have grown Pima cotton and wheat in rotation. It is a great rotation. I can water wheat in the winter and cotton in the summer. Rotating with wheat has increased my yields over half a bale per acre. But, wheat is probably not the best bang for the gallon of water. We are growing onions for the first time this year. But, there are two problems with fresh market produce. The markets are volatile and they use water in the summer. My wells have only so much capacity. I could not replace my wheat with vegetables without some surface water to use at the peak of summer. It is a complicated equation.

Without a reliable water supply how can I make decisions about the future? Why should I invest in a drip system that costs over a thousand dollars an acre if I will not have water to run through the drip system? Why should I invest in a new well for the dry years, if the state will not let me turn it on? I have to make decisions now that will take years to implement. The wrong decision now and I could be hung out to dry.

So, how are we doing during this drought? We did ok last year. This year looks ok, so far. Next year? 

Saturday, July 4, 2015

Love of Country, Love of Family

This still chokes me up.

Sullivan Ballou passionately loved his wife and sons. He also loved his country in a way few of us could express.

I'll see you all next week after we all get back to work.

Happy 4th Everyone!

Saturday, June 27, 2015

Farm for Sale

It's been another busy week on the farm. We have been cultivating weeds, spraying for bugs and getting ready to water again. We've already had our first bloom. It would have been earlier, but the lygus bugs really devastated the early crop. Still a long way to go til harvest, but it sire looks pretty for now.
   For the record, please notice we are irrigating every other road. I have had three reporters from Europe on the farm in the last two weeks. They are asking a lot of questions about the drought. I try to explain we have never had water to waste. We are always careful with every gallon.

I got a surprise looking down this morning. We've been so busy I didn't realize I was creeping up on another milestone- 440,000 miles. Not only am I cheap, but I really like this truck. We've got a lot of miles together. The seat is comfortable, the air conditioning works and the radio is fine. It's starting to show it's age, but I really don't want another truck. It's like a favorite shirt or old ball cap- it just fits.

Farm for Sale
By Paul H. Betancourt
Copyright June 2015

            Last summer a friend brought his family out to the car. He’s a great guy. I met him and his wife traveling in Israel a while back. I showed them the fields and equipment. I showed them how we measured soil moisture to schedule irrigations and how I swept the field for bugs and how we decided to whether to spray or not. As he was getting into the car Doc looked back at me and said, “ Too many moving parts.” Doc is a pretty smart guy. He is a pediatric anesthesiologist. He added, “Give me a body to take care of.” As I said, Doc’s a pretty smart guy. If farming is too complicated for a pediatric anesthesiologist, maybe it is complicated.
Maybe it is too complicated, but somebody’s got to do it or we don’t eat.

Like most farmers, my ground is precious to me. Some of it has sentimental value, it was farmed by Sheryl’s grandfather. I have sweated over all of it for most of my life. I used to think I would never sell an acre. But, I am re-thinking that.

            There are a lot of people who seem to think they know how to farm better than I do. The environmentalists are sure they know how to take care of things. Government regulators are glad to tell me how to run my farm.
            I have had people tell me, ‘why don’t you just put in drip irrigation? That will solve all your problems.’ Really? I usually ask, ‘Do you have drip in your yard? How much time do you spend fiddling with that each week?  Can you imagine doing that on a hundred acres?’ Usually at that point I get some head nodding. Drip irrigation is great, but it is not a magic wand. It is expensive to install and it is labor and management intensive.

            For the record, nothing I do in my life is above question. I appreciate the concern people have about where their food comes from and how it is produced. I want you to be confident that the food and fiber we sell is safe.

            I could not believe, my last year as Fresno Farm Bureau president how many politicians, journalists, regulators and academics said, “If you can’t follow these rules and produce we will just import our food.” Really? What makes you think foreign producers are going to be any better, or more committed to safe food production? We have already seen what happens. Do you remember? It wasn’t too long ago we had issues with tainted dog food and milk products from China.

            I have written before about the Social Contract. I teach ethics. In its simplest form the social contract asks- What does society expect of the individual? And, what does the individual as of society? I have been in meetings where people start saying what they want from farmers in terms of environmental regs and other things. Twice I have stopped that conversation and explained the social contract. Then I ask them- So, you want us to pay the workers a living wage? Yes, yes- gotta pay the workers. And, you want me to save water? Yes, yes- gotta save water. And finally, you want me to use less pesticides? Yes, yes- pesticides are bad. Then I tell them, that is fine. California farmers will be glad to do what you want, but we have one request. You have said what you want from California farmers, that is only half of the social contract. We have an expectation also- please buy food from us, instead of our foreign competitors just because it is cheaper. The room usually drops dead quiet when I do that. It is a fundamentally broken contract if society has expectations of us as individual farmers, but does not live up to its own expectations. Fair enough?

            The smart-alecky part of me wants to say, “If you think you can do this better, my ranch is for sale. You come and take a stab at doing this and see how complicated it is. If a pediatric anesthesiologist thinks it’s too complicated, maybe it is too complicated. The more reasoned part of me understands your concerns. I am proud of what I do because I know we produce the safest, most, varied and most affordable food supply in the history of the world. My fellow farmers and I will continue to hold up our half of the social contract, all we ask is you hold up your half.