With Growth, Northern Cities Stake a Claim to More Water

FAIRFIELD, Calif. —  This city to the east of San Francisco Bay is trying to cash in on a promise made a lifetime ago.

Invoking a 70-year-old law that was passed to keep one region from drying up another, Fairfield and two neighboring cities are seeking rights to water that for decades has been shipped south. Experts say their application could inspire others in the north to do the same, eventually shrinking Southern California’s water supplies.

The Bay Area cities argue that they have priority over Southern California to take water from Barker Slough, which drains into the Sacramento River. As justification, they point to a state law passed not long after Los Angeles commandeered the water of the Owens Valley and doomed its farms to dust and desolation. The law was designed to ensure that growth in cities and counties along major rivers would not be stymied by projects that diverted water hundreds of miles away.

Fairfield, Benicia and Vacaville have asked the state Water Resources Control Board to grant them rights to enough water to supply 155,000 people for a year--water that would otherwise be channeled to San Joaquin Valley farms and Southland cities.

“We’re growing, we need the water and we don’t have other sources,” said Rick Wood, Fairfield’s assistant director of public works.

The cities’ application is one of the first to push the boundaries of what are known as California’s “area of origin” laws. And it won’t be the last, many experts predict.

These laws will get more attention, some say, because little water is left for the taking and a new law requires builders of 500 or more homes to prove they’ve got adequate water supplies. That requirement, which took effect in January, will force many communities to legally quantify their water rights instead of simply assuming the water will be there when it’s needed. Applying for more water under the old area-of-origin statutes might be the easiest way for some cities and counties to expand their supplies and justify growth.

“We’re going to see more and more petitions under these statutes, because the Sacramento River is over-appropriated and the San Joaquin River is over-appropriated and people are running out of water for growth,” said Michael Jackson, a Plumas County attorney for the Regional Council of Rural Counties.

Southern California water officials acknowledge that growth to the north will cut into their supplies--planners decades ago assumed as much--but nobody knows to what degree.

The only recent application under such statutes to reach a final decision by the state water board involved El Dorado County’s request to take more water--enough to supply nearly 90,000 people for a year--from the American River east of Sacramento. The board granted the county the water last year, with some conditions. Environmentalists concerned that the increased diversion of water will harm Sierra lakes and trigger explosive growth have challenged the decision in court.

Area-of-origin laws date to 1931, only a few years after desperate Owens Valley farmers dynamited the Los Angeles aqueduct. Government engineers at the time were plotting to shift the flow of northern rivers south in schemes even more audacious than Los Angeles’ tapping of the Eastern Sierra.

The 1931 law and several that followed decree that even though huge quantities of water could be pumped hundreds of miles from California’s major rivers, communities near those rivers would get priority to take more water when they grew enough to need it.

The law does not guarantee the communities more water. They still must apply to the state, show a need for it and, if necessary, build a system to capture and move the water--a proposition too expensive for many rural Northern California counties. The law simply gives these “areas of origin” the opportunity to get higher standing in terms of water rights than those cities and farms served by state and federal water projects.

“The whole logic of the statute is that, even though the water’s been exported to other areas for many years, if the water is now needed in the area of origin, it should be possible to recapture what’s needed,” said Harrison “Hap” Dunning, a retired UC Davis law professor.

For decades, the statutes have been fairly passive protections. Many Northern California irrigation districts and cities had locked up generous water rights long before the federal and state governments built the dams and canals that serve Southern California. For many years, those rights have ensured enough water for new farms and subdivisions in the north.

But now, in some places, that slack is disappearing. In the last few years, water seekers have begun to lean on the area-of-origin statutes.

“What’s happening is what you’d expect,” said Fairfield’s Wood. “On the fringes of the Bay Area, where the development is occurring and reaching out into the Central Valley, that’s where you’re going to see this applied first.”

Largely untested by courts, the statutes may be tricky to apply.

The statutes bestow protections on “watersheds,” and it is fairly simple to define the area that drains into a stream by watching which way the rain runs off the land. But the laws also extend to areas “immediately adjacent” to a watershed and “conveniently” supplied with water from that area. That’s more difficult to define, water experts say.

It’s not clear, for example, whether Fairfield, Vacaville and Benicia exist within the “area of origin” of the Sacramento River. Benicia drains to the Carquinez Strait--a narrow neck of water that dumps the flow of Sacramento and San Joaquin rivers into the bay.

That’s an issue the state water board may wrestle with when it opens hearings on the cities’ petition in June.

Other applications are pending. A water district near Stockton seeks to use the area-of-origin laws to get more reliable water deliveries from a federal reservoir on the Stanislaus River.

And the vast Westlands Water District near Fresno last year applied to take a third of the flow of the over-tapped San Joaquin River under the premise that the river runs through Fresno County. That petition enraged farmers in nearby water districts who would see their supplies cut drastically if Westlands wins its case.

If granted by the powerful water board, these applications would shift enough water to serve 3.5 million people for a year away from San Joaquin Valley irrigators and southern coastal cities. That’s a significant chunk of the average 3.7 million acre-feet of water--enough to serve 19 million people--that is pumped south each year from the confluence of the Sacramento and San Joaquin rivers.

Southern California water officials seem unfazed by the area-of-origin applications. They say they stand by the Legislature’s promise.

“There are legitimate area-of-origin projects that will come online and will negatively impact supplies for Southern California,” said Tim Quinn, a vice president with the Metropolitan Water District. “But we have to honor the deal we struck a half-century ago.”

But those who depend on water pumped from the north also say they will be on guard against overreaching by water users there. The Department of Water Resources, which operates the State Water Project, has challenged the Bay Area cities’ application.

“We support the area-of-origin concept,” said John Coburn, general manager of State Water Contractors, a group of 29 cities and irrigation districts served by the State Water Project. “However, when you get into the definition of terms like ‘conveniently adjacent,’ that’s where we’ve got concerns.

“Where would you draw the line?” he asked. “That’s an issue that’s going to be coming at [the state water board].”

Fairfield stands ready to make its case, Wood says.

The town sits upstream of the watery maze that is the Sacramento-San Joaquin Delta, where big government pumping plants feed the canals that stretch hundreds of miles south.

Once a small farm town, Fairfield has become a bustling city of 98,000, a sanctuary for families fleeing San Francisco’s costly real estate. It is home to several candy factories, a Budweiser brewery and an Air Force base.

Fairfield, Benicia and Vacaville have grown by 20% in the last 10 years, and civic leaders figure to add another 78,000 residents in the next two decades--enough to outstrip water supplies in dry years.

“If we don’t get something from this process,” said Wood, “I think there’s going to be a feeling of betrayal that goes back to the Owens Valley.”