Water Rights

On Episode 7 of the TID Water & Power Podcast we sit down with TID’s Jason Carkeet to discuss Water Rights.

When we speak about the water operations of the District, we often talk about water rights and how those help shape how we manage our system. However, with the complexity that is the California water rights system, it may be difficult to understand what TID’s rights do, and what goes into maintaining those rights. 

California’s Water Rights system, the importance of TID’s water rights, and what the District is doing to protect those rights.

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Transcript

00;00;06;11 - 00;00;22;25
Speaker 1
Hello and welcome to the TID Water and Power Podcast. I'm your host, Constance Anderson. And on this month's episode, we're discussing water rights. When we speak about the water operations of the district, we often talk about water rights and how those helped shape how we manage our system.

00;00;23;10 - 00;00;46;08
Speaker 1
However, with the complexity that is the California water rights system, it may be difficult to understand what TID's rights do and what goes into maintaining those rights. On this episode, I'm joined by TID utility analyst hydrologist Jason Carkeet to talk about California's water rights system, the importance of TID's, water rights and what the district is doing to

00;00;46;08 - 00;00;49;07
Speaker 1
protect those rights. Jason, thanks for joining us.

00;00;49;15 - 00;00;50;09
Speaker 2
Well, thanks for having me.

00;00;50;28 - 00;00;54;27
Speaker 1
All right. Why don't you start off for us by telling us a little bit about your background with the district?

00;00;55;21 - 00;01;16;16
Speaker 2
I started with TID 15 years ago in October 2006 as a seasonal employee, doing archiving of some of the historic documents relating around the water rights and our water supply forecasting. Then on April 2007, I got hired as utility analyst and I worked for West Monier in the department that deals with water supply forecasting Don Pedro operations.

00;01;16;17 - 00;01;39;04
Speaker 2
We do flood control operations for Don Pedro, fishery releases and deliveries down to Turlock Lake for the irrigation system. And about three years ago, we hired another analyst who now more prudently does the water supply forecasting. And that allows me to focus more on water rights related issues, the water rights, accounting and other issues that really just

00;01;39;04 - 00;01;40;10
Speaker 2
revolve around water rights.

00;01;40;23 - 00;01;55;05
Speaker 1
Excellent. Well, thanks for being with us today. So starting our conversation about water rights, let's let's start at kind of a 30,000 foot level and talk about California rights in general. So what exactly are water rights?

00;01;55;25 - 00;02;09;13
Speaker 2
Water rights in California are what are called use of fructaury rights their rights for a use of something. In California, the water is a public trust. It belongs to the state of California. So the rights themselves are to use the water, not to own the water.

00;02;10;05 - 00;02;14;15
Speaker 1
That's an important distinction. And what types of rights are there?

00;02;14;23 - 00;02;31;27
Speaker 2
Well, there are a few types of rights in California, but the two main ones that we deal with at TID are riparian rights and appropriate of rights. Now, riparian rights are from the old English common law system that were adopted in the United States, primarily on the East Coast, where it's whether you see more riparian rights, which

00;02;31;27 - 00;02;46;15
Speaker 2
are the type of rights they're tied to the land. So if a party owns a parcel of land that abuts the waterway, they have that party has riparian rights. And those rights are to use the water to the extent that it can be put to beneficial use, not excessive or unreasonable used.

00;02;47;00 - 00;02;58;24
Speaker 2
And riparian rights are correlative, which means that they're shared proportionally among all of the parties along the river. So let's say, for example, Constance, you have a parcel next to mine and it's twice as large as my parcel.

00;02;58;27 - 00;03;10;00
Speaker 2
And we have the same kind of uses. Let's say we both have pasture. Well, essentially the same type of use. Really? You have the right to twice as much water as I have because you have twice as much riparian land.

00;03;10;14 - 00;03;26;05
Speaker 2
One of the interesting things, though, is that you don't have absolute right to that amount of water, because as the water in the waterway decreases, there's less water for all to have access to. So as your right to use the water kind of diminishes with the supply.

00;03;26;06 - 00;03;29;08
Speaker 2
Mine also proportionally diminishes so that they're correlative in that way.

00;03;29;22 - 00;03;38;10
Speaker 1
Okay, so those are riparian rights where the property abuts the waterway. And then what is how do we define appropriative rights?

00;03;39;02 - 00;03;52;20
Speaker 2
Well, appropriative rights. Whereas with riparian rights, the rights are attached to the ownership of the property. Appropriative rights are for diverting water off stream and using it on parcels away from the waterway, and they have five distinct characteristics that define them.

00;03;53;09 - 00;04;02;25
Speaker 2
The first one is your rate or volume of diversion. How much water are you going to take off the waterway? The second one is your point of diversion. Where along the waterway are you going to pull that water?

00;04;03;12 - 00;04;17;21
Speaker 2
The third one is the purpose of use. Is it going to be for stock watering or irrigation or maybe for municipal water supply? The fourth one is your place of use, like the location of your parcel, for example, or the location of your municipality that you're going to serve.

00;04;18;05 - 00;04;33;19
Speaker 2
And the fifth one is the priority of right. And that's where we get into this principle first. And time is first and right. Say, for example, you and I each owned a parcel that's ten miles off stream. So we're going to file for a property of rights and you happen to actually be downstream from me.

00;04;33;19 - 00;04;51;08
Speaker 2
And I'm then, of course, upstream from you. And I go and file for my right, say a month before you do. And I start building my ditch and I start diverting water before you do. Well, even though technically your diversion points downstream, I filed and start diverting for you so my right as a priority date before yours

00;04;51;19 - 00;04;54;20
Speaker 2
. And that puts me first in time, which then makes me first and Right.

00;04;55;14 - 00;05;12;12
Speaker 1
Very good. Okay. So if we simplify, then when a right is filed and acted upon is kind of like the birth date of that. Right. So a right with an earlier birth date, so to speak, is going to be senior to one that files later as a junior, right?

00;05;12;20 - 00;05;14;10
Speaker 2
Yeah. That's a good way to put it. Okay.

00;05;14;10 - 00;05;20;16
Speaker 1
Very good. All right. So why is California's water rights system important?

00;05;21;00 - 00;05;40;15
Speaker 2
Well, it's important because it helps bring order to the diversion process. I mean, riparian, right. Owners have inherent rights to the water by virtue of the ownership of the land. And without a system of place where you have seniority or priority, if you will, then people who actually have vested rights could be denied their rights.

00;05;40;15 - 00;05;53;26
Speaker 2
And in California, if you don't have a right to divert water and you take that water, it's a trespass. So it's important to have a system in place that helps just keep order and make sure that people with with the rights can get the water to which they have right to use.

00;05;54;11 - 00;05;56;11
Speaker 1
And again, for beneficial use as you.

00;05;56;11 - 00;05;59;10
Speaker 2
Yes, and for beneficial use not for unreasonable use.

00;05;59;19 - 00;06;06;01
Speaker 1
Great. Okay. Now, how do these water rights apply, if at all, to surface versus groundwater?

00;06;06;25 - 00;06;18;12
Speaker 2
Well, surface water and groundwater kind of have a similar set of systems where with surface water, we have riparian rights and we have a property of rights, groundwater, we have what are called overlapping rights. And then we have a property of rights.

00;06;18;24 - 00;06;36;13
Speaker 2
And as with riparian rights, ownership of the land and the rights are tied together. Same with overlying rights for groundwater. If you and I have a partial ground and say we're neighbors and your parcels twice as large as my parcel, we both have overlying groundwater rights.

00;06;36;21 - 00;06;51;11
Speaker 2
But just like riparian rights, our rights are correlative. And if we again have the same types of use, you have right to pump out twice as much water as I do. As long as you don't cause a harm to me and I don't cause a harm to you, then one of the interesting things about that is the

00;06;51;23 - 00;07;05;17
Speaker 2
remedy up until recently was the court system. So if you caused a harm to me, I'm an injured complainant, I would have to file suit against you in civil court. Same applies now with the appropriate rights for groundwater.

00;07;05;17 - 00;07;22;01
Speaker 2
Municipalities are considered appropriators, so they have less priority than the overlying right holder. And let's say you have now in this next example, a small water system is like a little neighborhood municipality, and you provide drinking water to them and you start pumping and it drops.

00;07;22;01 - 00;07;37;10
Speaker 2
May well, well, as a overlying right holder I have priority to you the municipality, and if you cause harm to me, then I would have to sue you. And the problems that occurred with the torch systems that not a lot of the little independent folks have the financial resources to to find remedy in the in the tort

00;07;37;10 - 00;07;37;23
Speaker 2
system.

00;07;38;14 - 00;07;47;15
Speaker 1
Okay. So now let's drill down a little bit into TID specific water rights. What types of rights does the district have or does the district own?

00;07;47;27 - 00;08;07;25
Speaker 2
Well, TID jointly owns its rights with Modesto Irrigation District, but we'll simply refer to TID in this case or we'll call them districts. The districts districts have both riparian rights and appropriate rights are our riparian rights are for power generation, for property, as we have right on the river, adjacent to the river.

00;08;08;07 - 00;08;24;11
Speaker 2
And our procreative rights are for both power generation and irrigation. And among the appropriate rights we have direct diversion rights and we have rights to storage. So some of the water, when there's a lot of inflow coming in to Don Pedro, there's more that we're in a store, maybe in a given day.

00;08;24;24 - 00;08;36;18
Speaker 2
What we're sending down the upper main canal will actually be from direct diversion rights for some of that inflow. And then the water that we're not using from the inflow, we collect the storage in Don Pedro or also we can collect storage in Turlock Lake.

00;08;36;27 - 00;08;40;22
Speaker 2
And there's where we use the two different, you know, direct diversion and storage rights.

00;08;41;28 - 00;09;00;21
Speaker 1
So our ability to operate each of these aspects of the district, whether it's generation or it's diversion for irrigation or storage, each of those is tied to a specific right that the district owns. And is Own's the correct terminology for that?

00;09;00;22 - 00;09;02;01
Speaker 1
Does the district own these rights?

00;09;02;15 - 00;09;15;12
Speaker 2
Yes. In California, water rights are property and they can be sold. And that's part of our story as Turlock Irrigation District both TID and MID were founded in 1887, and they immediately began filing their own claims to water.

00;09;15;12 - 00;09;28;24
Speaker 2
Right. But they also went out and purchased older water rights. Now, some of the water rights we purchased go back to the 1850s, the original filing of the claim. But for most of those rights, the system wasn't worked on.

00;09;28;24 - 00;09;38;12
Speaker 2
There was no due diligence to develop a system and no water was diverted. So by the time we actually started exercising those rights, they actually ended up with a lesser or a younger priority date.

00;09;38;27 - 00;09;44;04
Speaker 1
So the rights were obtained prior to when we were actually ready to act on those rights or develop those rights.

00;09;44;04 - 00;10;06;24
Speaker 2
Correct. The oldest rights we have go to 1871 is the La Grange Mining Ditch Right. And subsequent to that, they're another basket of rights. Again, like I said, some we bought, others we filed and. Perfected ourselves. So in 1890, the two districts joined together to build the La Grange Dam, which was completed in 1893.

00;10;07;03 - 00;10;27;08
Speaker 2
But part of that agreement said that we'll jointly own and operate exercises, rights and any future rights that one party tries to acquire. The other party has right to also enter into that. So as it's turned out, moving forward from 1890 TID and MID have collectively acquired new rights and jointly own them as well.

00;10;27;14 - 00;10;33;28
Speaker 1
Okay. So you mentioned that TID has a variety of rights. How many rights does the district actually have?

00;10;35;03 - 00;10;51;14
Speaker 2
Well, we have a whole basket of pre 1914 appropriate of rights, then we have ten distinct post 1914 appropriate of rights. And then we have the riparian rights for generation that I mentioned earlier. Now the distinction between pre 1914 rights and post 1914 rights is a little story in and of itself.

00;10;51;26 - 00;11;04;26
Speaker 2
As I mentioned before, prior to 1914, water rights, a property of rights were like mining claims. A party would put a stake in the ground with a board on it defining their claim, and then they go to the county seat and file that claim.

00;11;05;12 - 00;11;24;23
Speaker 2
But when the Water Commission Act was passed and the Water Commission was seated in December 1913, that changed the whole way that appropriate rights were acquired and 1914 became that sort of threshold date. So under the Water Commission Act, the Water Commission, which is now the State Water Resources Control Board, would receive applications for approti

00;11;24;23 - 00;11;40;07
Speaker 2
rights and they would approve them or reject them. And if they approved them, they'd issue a permit and that party with the permit then would help start to develop their system and exercise due diligence in that. And once they start diverting water, the State Water Commission would then define the right based on how much water they diverTID

00;11;40;12 - 00;11;46;14
Speaker 2
and actually put that in stone on a water rights license. And that becomes the water. Right.

00;11;47;15 - 00;12;05;06
Speaker 1
Okay. So the the State Water Resources Control Board has jurisdiction over post 1914 rights, whereas before prior to their formation as the former Water Commission, they have less to say about the pre 1914 rights. Is that accurate?

00;12;05;14 - 00;12;20;23
Speaker 2
That's correct. Up till now, the courts have said that the state water board does not have jurisdictional authority over the pre 1914 rights. However, they do have the authority to examine how those rights are exercised and whether or not the water is put to beneficial use.

00;12;21;02 - 00;12;33;20
Speaker 2
So the beneficial use principle covers the whole spectrum and if you are wasting water or you're putting it to unreasonable use, even if it's a post or I'm sorry, a pre 1914. Right. The state water board can take action.

00;12;34;13 - 00;12;39;27
Speaker 1
Okay. And while we're on the topic, can you define beneficial use for us a little bit?

00;12;40;22 - 00;13;00;20
Speaker 2
Yeah, that's a that's a really good question. Beneficial use is, they've changed somewhat over the years. A beneficial use can be, say, for example, you're putting your water to irrigation or your watering stock or municipal drinking supply, things that benefit you personally or publicly.

00;13;01;16 - 00;13;11;05
Speaker 2
Now, what would be an unreasonable use is that say you want to divert a million gallons a day to hose off the street in your neighborhood? Well, the state board's going to tell you, just get a broom, okay.

00;13;11;05 - 00;13;27;15
Speaker 2
Or get something else. That's an unreasonable well, that's considered unreasonable use again, because the water is a public trust. The state has the authority to look at whether or not you're putting it to beneficial use. And as I mentioned, for beneficial uses, as they're seen by society, have have developed a little bit over the years, whereas say

00;13;27;15 - 00;13;41;25
Speaker 2
70 years ago there was less emphasis put on things like fisheries and sometimes streams would go dry from diversions. Now, as a society, we've we've put more emphasis on environmental concerns and fisheries in particular, that's considered a public trust.

00;13;41;29 - 00;14;01;01
Speaker 2
And using water to support fisheries is also considered a beneficial use. So whereas you can't get a license to divert water to hose off your street, you can get a water rights license to take water and apply it, say, to a fishery or some other habitat type of concern.

00;14;01;14 - 00;14;03;12
Speaker 1
As is seen as beneficial use.

00;14;03;15 - 00;14;03;28
Speaker 2
Yes.

00;14;03;29 - 00;14;15;05
Speaker 1
Perfect. Okay. All right. So going back to that 1913 date, that was also when Congress enacted the Raker Act. What is the Raker Act and how did it come to be?

00;14;16;18 - 00;14;27;15
Speaker 2
Well, after the 1906 earthquake, there was a lot of talk in San Francisco about, you know, we've got to get a new water supply. And, you know, most of the damage in San Francisco is not from the earthquake itself or from the fires.

00;14;27;16 - 00;14;41;16
Speaker 2
And so it really got this battle going to how are we going to get more water? How are we going to get better water? And the city engineers sent a bunch of folks up from San Francisco into the Tuolumne River Basin, and they started putting stakes in the ground and making water.

00;14;41;16 - 00;14;52;17
Speaker 2
Right claims. Well, they wanted to build a project in the national park, Yosemite National Park. To do that, they needed a right of way permit from Congress. And that's what the Raker Act is. It's a right of way permit.

00;14;53;04 - 00;15;03;23
Speaker 2
That lists a set of conditions by which San Francisco, if they meet those conditions, they can build and operate their system within Yosemite National Park and the National Forest.

00;15;04;17 - 00;15;18;16
Speaker 1
Okay, so the Raker Act is not a water right. It doesn't give the city and county of San Francisco the right to that water. It gives them the guidelines by which they need to operate in order to act to act upon the water rights that they have claimed.

00;15;18;18 - 00;15;19;07
Speaker 1
Is that accurate?

00;15;19;13 - 00;15;33;27
Speaker 2
Yes, that's correct. That it's not a water right itself. One of the things related to water rights that's talked about in Raker Act is an incumbent upon city. It's a requirement that they meet districts downstream, senior water rights up to a certain extent.

00;15;33;27 - 00;15;52;18
Speaker 2
And that really kind of begins a battle between the districts and San Francisco. Up until around 1940, when we were suing each other in disagreement over what our rights were, we claimed and city said, Well, we don't have to recognize up to that amount that you're claiming because our permit only says just to this other amount.

00;15;52;18 - 00;15;57;00
Speaker 1
And even though TID was technically the senior water rights holder.

00;15;57;00 - 00;16;15;17
Speaker 2
Yes, that's correct. Then in the 1930s, you know, you see. The Army Corps of Engineers is developing its flood control responsibility and starting to build projects for flood control all throughout the country. And one of the places they looked at building a flood control project was on the Tuolumne river around Jacksonville, which is kind of near Moccasin

00;16;15;21 - 00;16;31;18
Speaker 2
, where Moccasin Creek comes into Don Pedro reservoir there. Well, once districts and City of San Francisco saw that there was a third big party called Army Corps of Engineers wanting to build a reservoir in between the San Francisco operations in the TID and MID operations.

00;16;32;01 - 00;16;44;23
Speaker 2
We all decided to come together and and say, look, let's build our own flood control project. Let's put our differences aside. Let's figure out how we can work together and and make this less complicated than it would be if there was a third party in between us.

00;16;45;10 - 00;16;54;02
Speaker 2
So that began the first of four operating agreements that we have now that ultimately led to the building of the current Don Pedro project.

00;16;55;05 - 00;17;11;23
Speaker 1
Okay. So let's go into what those those four agreements look like. So city and county of San Francisco, TID and MID decide to join forces rather than then continue their their conflict with each other to prevent this third party from coming in and kind of setting up shop between the two.

00;17;12;06 - 00;17;17;11
Speaker 1
And that led to the four agreements between the districts and city and county of San Francisco.

00;17;17;12 - 00;17;26;08
Speaker 2
Correct. So keep in mind, at that time, the old Don Pedro project was finished in 1923, and I think O'Shaughnessy Dam was finished about 1924.

00;17;26;09 - 00;17;29;00
Speaker 1
And O'Shaughnessy is the property of city and county of San Fransisco.

00;17;29;00 - 00;17;41;28
Speaker 2
That's the dam that impounded Hetch Hetchy Reservoir. Yes. So the first operating agreement, which is called the first agreement, it was in the early 1940s, and it basically said, hey, we're going to put our differences aside and work together.

00;17;41;29 - 00;17;47;24
Speaker 2
It's almost it's basically one one page. The second agreement, which is called the second agreement.

00;17;48;26 - 00;17;49;13
Speaker 1
Creative.

00;17;49;26 - 00;18;02;17
Speaker 2
Yes great creative, expands on that a little bit, which then leads to the third agreement and fourth agreement. And those two agreements really outline the building of Cherry Valley Reservoir and ultimately the building of what then was called New Don Pedro.

00;18;02;17 - 00;18;18;08
Speaker 2
What now currently is simply called Don Pedro Reservoir, and particularly a fourth agreement outlines the cost contributions, the financial contributions that San Francisco is going to put into the project. It also defines the current Don Pedro project as the sole flood control reservoir for the Tuolumne.

00;18;18;27 - 00;18;34;29
Speaker 2
And it outlines some other details about how San Francisco and the districts will operate together. And one of the key things is that although San Francisco paid for almost 52% of the project, the current Don Pedro, they own no part of it and they have no rights in that project whatsoever.

00;18;35;17 - 00;18;50;24
Speaker 2
A lot of people would ask, well, why would they do that? Well, San Francisco gets two principal benefits from doing that. One is that, again, the sole flood control space for the army is in Don Pedro Reservoir. So city and county of San Francisco over the course of the winter, they can fill the reservoirs completely.

00;18;51;01 - 00;19;05;14
Speaker 2
They don't have to leave any empty space that benefits them with water supply. The second primary benefit is what's called water bank, and that term can be a little misleading sometimes because it's not an actual physical banking of water in Don Pedro.

00;19;05;28 - 00;19;21;01
Speaker 2
What it really is, is an agreement whereby we agreed that on every single day there's a certain amount of inflow that needs to come into Don Pedro. And that that amount, that inflow requirement changes day to day because it's a calculated number based on a few different conditions.

00;19;22;07 - 00;19;36;08
Speaker 2
Now, if San Francisco exceeds that requirement on a given day, they can get credit. And using that credit down the road when it's drier, they can hold back water and not meet that daily requirement, but then instead they just draw down credit.

00;19;36;16 - 00;19;46;27
Speaker 2
That's akin to, let's say, Constance, you and I have an agreement that every week I pay you $5. But if one week I pay you $10, that means down the road. Some other week I could not pay you the $5.

00;19;46;27 - 00;20;02;26
Speaker 2
But you're still kept whole because I paid you ahead of time. That's pretty much what water bank is. It's a paper. It's we call it paper water versus wet water, which sounds kind of odd, I guess, because water is wet, but it's credit, it's credits, not actual wet water in Don Pedro.

00;20;03;00 - 00;20;19;02
Speaker 2
Now, sometimes you'll hear San Francisco talk about their Don Pedro as storage. So and this is an important point because I think sometimes it has caused confusion with some folks I've talked to. They call it their Don Pedro storage because from a planning perspective, you would view it as storage.

00;20;20;15 - 00;20;35;15
Speaker 2
If they have credit in Water Bank, that means that inflow coming to their system does not have to get passed down. And it's akin to having stored water and Don Pedro when in reality it's not. So sometimes you'll hear them in public documents, talk about their dam people storage.

00;20;35;26 - 00;20;43;00
Speaker 2
It's not actually storage. Again, they have no ownership of Don Pedro and they don't have any rights to store water in Don Pedro or divert from Don Pedro.

00;20;43;08 - 00;20;56;26
Speaker 1
Okay. So again, water bank refers to not an actual bank of water, but the accounting principles associated with the releases that city and county of San Francisco are making or not making into Don Pedro.

00;20;57;06 - 00;20;57;17
Speaker 2
Yes.

00;20;58;03 - 00;21;16;08
Speaker 1
Okay. Okay. So considering the Tuolumne river specifically and you'd mentioned this point earlier, that tied to the rights that TID has are senior to that of city and county of San Francisco. But city and county is higher on the river, as is upstream.

00;21;16;19 - 00;21;17;18
Speaker 1
How does that work?

00;21;18;02 - 00;21;33;21
Speaker 2
Well, that kind of leads us back to to first agreement. Really. There's an old adage that it's better to be upriver with a shovel than down river with a water right. And when Raker Act was passed and San Francisco started to build the Hetch Hetchy water system, that's pretty much where we found ourselves and that's how the

00;21;33;22 - 00;21;34;18
Speaker 2
conflict ensued.

00;21;35;10 - 00;21;40;23
Speaker 1
Okay. So then this many years down the road, what is our working agreement like with city and county of San Francisco now?

00;21;40;27 - 00;21;57;06
Speaker 2
Well, it's actually really good. We have our counterparts from my department and from San Francisco's offices at Moccasin, and we work together really well. Again, we have these four agreements that have been around since the forties, and we need to work together as the Tuolumne partners.

00;21;57;06 - 00;22;09;22
Speaker 2
More or less, we share information about what we're going to do, our plan releases, we compare, run off forecast. We really work together to make the system as efficient as possible so that all parties benefit as much as they can.

00;22;10;10 - 00;22;11;20
Speaker 2
It's a great working relationship.

00;22;11;27 - 00;22;20;23
Speaker 1
Excellent. Okay. Okay. So we've talked about TID, MID, and city and county of San Francisco. Who else has water rights on the Tuolumne river?

00;22;20;29 - 00;22;42;08
Speaker 2
Well, there are a lot of riparian right holders downstream and upstream. And then there are some smaller diverters. The two biggest are city, county, San Francisco and districts by far. The rest of the parties that have rights to the Tuolumne are typically smaller individuals, parties or there's a camp or two I know up near Dodge Ridge that divert

00;22;42;08 - 00;22;51;27
Speaker 2
for their their water supply in their camps. And then again riparian. And that's pretty much all that I know of. And stock watering too up around Don Pedro.

00;22;52;17 - 00;23;07;18
Speaker 1
Okay, very good. So taking a look one more time at kind of the timeline in which TID and MID have acquired these rights. So it was started with old Don Pedro. Well, it started sorry, further back pre pre 1914.

00;23;08;04 - 00;23;15;13
Speaker 1
But when it comes to actual projects old Don Pedro required the filing of a water, right? Correct.

00;23;15;22 - 00;23;33;03
Speaker 2
That's correct. But it goes back a little bit further because in 1914, when we built what's now called Turlock Lake, we have pre 1914 rights to store water there because we saw early on we built the La Grange Dam in 19 or I'm sorry, 1893 and, you know, some years that dam is an overtop dam.

00;23;33;03 - 00;23;43;06
Speaker 2
It just backs up the river flow enough so that we can divert both to Turlock and Modesto down our canals. But some years the river runs dry and so you need storage. So that first storage was built in Turlock Lake.

00;23;44;08 - 00;23;59;05
Speaker 2
Then we saw that we needed more storage as more people came in and settled the area and there was more demand for irrigation water. We built the old Don Peter project in 1923. Now for that project. We did have to file rights and that's the beginning of our post 1914 right filings.

00;23;59;15 - 00;24;11;26
Speaker 2
We have direct diversion for San Francisco's releases. They're going to come downhill and then we have storage rights and those rights are kind of two fold. You have a right to collect a storage and also a right to divert to storage.

00;24;12;13 - 00;24;33;03
Speaker 2
So both the direct diversion and and storage rights for old  Don Pedro are were necessary to build the project. And then again, as you develop projects, you have to acquire rights for those without the rights you can't. They were so when we filed rights for the current Don Pedro in the 1960s and now we have almost like two

00;24;33;04 - 00;24;53;10
Speaker 2
sets of like they're like mere access reflections of each other. We've got the storage rights for generation in Old Don Pedro and the storage rights for generation in New Don Pedro. And they're kind of sisters there. And over here, the cousins, you've got the storage rights for irrigation in  Don Pedro and the storage rights for irrigation in the

00;24;53;10 - 00;25;10;24
Speaker 2
current Don Pedro. So they, they all work together. One important point to keep in mind, too, is that we have a water first priority, and that means that we don't release the water unless we can use it for one of three regions irrigation or we're using it for our fishery flows or we're using it for flood control

00;25;11;03 - 00;25;27;10
Speaker 2
. It's only when we're releasing for one of those three reasons that that we generate electricity, we simply don't run water and generate electricity just for the sake of generating. So an example where we released water for irrigation, it's going to go through the powerhouse and we get that secondary benefit and then it goes down the canal.

00;25;27;10 - 00;25;30;23
Speaker 2
So that's pretty much how that works. These rights work in tandem.

00;25;31;02 - 00;25;36;05
Speaker 1
All right. Are there any other unique characteristic of rights that we haven't touched on yet?

00;25;37;04 - 00;25;55;24
Speaker 2
Well, let me see. Let's go back to the pre 1914 riots again. Those really started with hydraulic mining and the early rights. You see, we have these rights on paper and they're listed in a unit called Miners Inches because of course they were mining and it's typically referred to as so many miners inches under four inches of

00;25;55;24 - 00;26;09;17
Speaker 2
pressure. But it gets a little curious when you look around the west and even within California itself, in some reason, some regions. As the miners inch was defined, it takes 40 miners inches to equal one cubic foot per second.

00;26;09;23 - 00;26;26;10
Speaker 2
And in some areas it's 50 miners inches equals one cubic foot per second. Now to visualize it, a cubic foot is roughly the size of a basketball, a little larger. So if you Constance have a water right to divert ten cubic feet per second, it's like taking ten basketballs per second off the river.

00;26;27;12 - 00;26;36;16
Speaker 2
And it just is an odd curiosity that I always find interesting is is covering the miners inches two cubic feet per second. It depends really where in the state you are.

00;26;37;01 - 00;26;38;17
Speaker 1
Depends on which miner you talk to.

00;26;38;23 - 00;26;39;10
Speaker 2
Correct.

00;26;39;15 - 00;26;58;19
Speaker 1
All right. Well, thank you for that fun fact. Okay. So now let's talk a little bit about maintaining our rights. So we file for the right, assuming the rights are granted. Are those rights a property of the district forever or what do we need to do to maintain ownership of those rights?

00;26;59;12 - 00;27;17;03
Speaker 2
Well, that's another interesting question, Constance, because with the beneficial use principle tied to that is this idea that you have to use it or you lose it with water rights. There's a concept of perfection. And that means I might claim a right to 100 CFS, but if I only.

00;27;18;00 - 00;27;29;22
Speaker 2
Divert continuously about 80. That means I perfected actually a right for 80. I don't really have a right to 100 CFS. So as long as we're using that water and putting it to beneficial use it firms up and protects that right.

00;27;29;22 - 00;27;46;17
Speaker 2
So being good stewards using the rights effectively and efficiently, that's the best way to protect them. And the community has really done a good job too, by converting irrigation to some efficient systems whereby we can actually grow more and do more with the same amount of water that we have always had.

00;27;47;13 - 00;27;58;18
Speaker 1
Okay, great. And can you tell us a little bit about you mentioned that on an on an annual basis, you have to file these rights. Are you file the reporting behind these rights, I guess? Can you tell us more about that process?

00;27;58;29 - 00;28;16;01
Speaker 2
Sure. So in the water rights accounting, you know, I built some workbooks that take in line out the rights by their priority. And as we are exercising, you know, for irrigation generation, we allocate the use of the water first to the senior rights and then to the junior rights.

00;28;16;09 - 00;28;27;15
Speaker 2
And it works the same with the storage. When we start storing water in Don Pedro, that water is accounted to the old Don Pedro rights first. And then as those fill up their accounted to the new Don Pedro Rights.

00;28;27;25 - 00;28;40;21
Speaker 2
So each year at the end of March. In our department. No new tasks really get issued to me because the focus is on truing up that accounting and then filing the forms to submit to the State Water Resources Control Board.

00;28;41;03 - 00;28;55;16
Speaker 2
Now those forms used to be on paper and we'd fill them out and I would actually drive to Sacramento and submit them. And they had a time clock there on the counter and they would stamp each packet of forms and I'd bring one copy home with stamp on it, show date and time as proof that we submited

00;28;55;16 - 00;29;09;19
Speaker 2
them. Well, seven years ago, it's all gone electronic now, and you get a receipt more or less showing that you submitted and you fill out the form online. And then you can also the public can go to the same or similar website and view the filed forms.

00;29;09;19 - 00;29;19;18
Speaker 2
And and so there's a lot of transparency. And then it's a public filing. We're a public agency. So people and there are a lot of eyes looking at the Tuolumne river and looking at how people are using water.

00;29;19;26 - 00;29;35;08
Speaker 2
So it's it's it's an arduous process, but it's really important. At the end of March, we filed the forms for the post 1914 rights. And then at the end of June, we do the same thing for the pre 1914 rights and ripairan rights.

00;29;35;21 - 00;29;50;10
Speaker 2
And if the USGS data that we use gets trued up and corrected between the end of March and the end of June, I might necessarily file some amended reports on those post 1914 rights I originally filed at the end of March.

00;29;50;26 - 00;30;01;08
Speaker 1
That sounds like a lot of data to organize and maintain and and make sure you're accurately reporting out on to maintain these rights to the best of our ability.

00;30;01;16 - 00;30;02;06
Speaker 2
Sure is.

00;30;02;16 - 00;30;23;00
Speaker 1
All right. Now, I want to go back to something that you mentioned, that a lot of eyes are looking at the way the districts use water and not just TID and MID, but statewide. So currently we're coming out of consecutive dry years and it seems like in in those times especially water rights, the equity of water rights, the

00;30;23;00 - 00;30;29;16
Speaker 1
water rights system itself is often called into question. Is there a situation in which our water rights are at risk?

00;30;30;19 - 00;30;44;15
Speaker 2
Well, currently now the State Water Resource Control Board issued curtailments on all the water rights in the vast region from outside the legal delta and some within the legal delta all the way to headwaters of the Sacramento and the San Joaquin River.

00;30;44;26 - 00;31;12;04
Speaker 2
And a similar process took place in 2014, 2015. Where curtailments were issued. How will we address that? Through legal means. We want to challenge them wherever necessary, if due process hasn't been followed or if we think there are jurisdictional issues, for example, with the pre 1914 rights fighting suit in order to challenge the state board's attempts to

00;31;12;04 - 00;31;25;18
Speaker 2
try to curtail pre 1914 rights. But the probably most important thing that we do is just be good stewards and use the water efficiently. You know, we have our Tuolumne River restoration plan that includes good uses of water.

00;31;26;03 - 00;31;39;18
Speaker 2
We've got a lot of things that we do just to make sure that we're accounting for it well. And being good stewards, that's probably the best defense we have, is just to be prudent and to show and be publicly aware and make it known that we're we're doing a good job here in the Tuolumne.

00;31;40;08 - 00;31;54;21
Speaker 1
And can you give speaking of being good stewards, can you give me an example of a typical TID operation that we make sure is taken care of every year with regard to how we use our water so that we don't come in violation of any of these rights?

00;31;55;18 - 00;32;09;07
Speaker 2
Yeah, one of those things is our fishery flow schedule, part of our FERC order. And the FERC is the Federal Energy Regulatory Commission. And they're the body that issues the license for the Don Pedro power plant. And we're currently going through a process for a La Grange power plant.

00;32;09;22 - 00;32;30;09
Speaker 2
But one of the important aspects of that license is our fishery releases. Prior to that, like I said, sometimes streams would just dry up. Well, with Don Pedro Reservoir, we keep water in the reservoir for our fishery releases for the next year and we have little higher flows in the fall each year for attracting salmon into the

00;32;30;09 - 00;32;47;05
Speaker 2
system. Then we have some higher flows in the spring to help flush out juvenile salmon toward the ocean. Every year when we do our water supply forecasting, where we consider the different scenarios, predicting different amounts of runoff from the watershed and then trying to determine how much water supply we'll have for irrigation.

00;32;47;09 - 00;32;58;10
Speaker 2
Well, we take the next year's fishery water out of the question already, so that fish water's first thing off the table. So it's not touch to make sure we have cold water pool for the fish for next year.

00;32;58;21 - 00;33;03;17
Speaker 2
And that's one example where we we really look at it closely and make sure that we're doing things right.

00;33;04;05 - 00;33;13;17
Speaker 1
Absolutely. And again, as in in protection of our water rights. So that can never be questioned as to whether or not TID is exercising those rights effectively.

00;33;13;22 - 00;33;16;10
Speaker 2
Yeah, correct. It's about water rights and it's about what's right.

00;33;16;27 - 00;33;36;18
Speaker 1
Absolutely. Okay. So looking at the water rights system itself, again in dry years, there's a lot more focus on how the water is can be accessed, how the water right system works. Is there potential or threat of ever changing the water rights system itself?

00;33;37;13 - 00;33;54;00
Speaker 2
Yeah, there's, you know, off and on throughout the years. It comes up time and again. And particularly when you have cycles of dry years, several dry years in a row, it always raises the questions about equity, not necessarily in the sense of in a legal sense, but like in a practical sense, who should get water?

00;33;54;17 - 00;34;13;09
Speaker 2
Why is it first in time, first and right? How come this person can't get water if they need it? But that person does. And there are a lot of proposed solutions which often not talked about. And what I see is the complicated nature of changing the water rights system, because right now it's really a property type system

00;34;13;29 - 00;34;31;27
Speaker 2
. And any time. The state wants to take property from one party and give it to another party. It gets complicated really quickly and taking water rights for one party and granting them to another party is not too much difference than taking some other type of property from somebody and giving it to somebody else.

00;34;32;12 - 00;34;48;14
Speaker 2
You know, I'm not arguing for or against any one of the propositions that's really up to us as a society to determine. But we just need to be aware that when we have a system of political thought, if you will, that that developed out of rights and property.

00;34;48;28 - 00;35;03;17
Speaker 2
When you start upending the property system, it's going to get complicated really quickly. And just we need to be thoughtful of that as we approach any decision or any proposition of changing the water rights system. So it's not something to be entered into lightly, that's for sure.

00;35;04;00 - 00;35;22;18
Speaker 1
And throughout the decades, you know, the water system has faced different challenges and and demands. And what's considered beneficial use has has further developed. What are some of the additional demands that maybe have been placed upon the water system of the water rights system?

00;35;23;18 - 00;35;42;15
Speaker 2
Well, one of the things we've mentioned before was the society's changing views on what is a public trust. And again, we mentioned fisheries and that is a beneficial use using water for environmental purposes. But another thing is that population patterns have shifted and cropping patterns have shifted some.

00;35;42;16 - 00;35;51;05
Speaker 2
And so just in general, as society changes, the demands do change. And it raises new questions with each generation.

00;35;51;27 - 00;36;04;04
Speaker 1
Okay. So through all this, throughout all of these challenges and kind of the system being questioned, TID still does what? Whatever it can to protect our water rights.

00;36;04;19 - 00;36;20;08
Speaker 2
Yes, we do. And that includes all of these things we've talked about pretty much throughout our conversation. We first of all, we are prudent in how we use the water. We have a water first priority. Second, we're transparent and and we report diligently.

00;36;20;20 - 00;36;33;02
Speaker 2
And thirdly, we put the water to beneficial use as much as possible and as efficiently as possible. So really, to sum it up, we just again, we're good stewards with with our what we have as far as water rights and responsibilities with that.

00;36;33;14 - 00;36;53;19
Speaker 1
Absolutely. And I think that's something that we're seeing specifically right now as well in that while there is a shortage of water throughout the state Don Pedro is is in a much better place than some other areas of the state, because we are so well managed, because we we are such good stewards of these resources sometimes that

00;36;53;19 - 00;37;07;27
Speaker 1
that shines a light on the district in almost a negative way, because we're not in as dire a situation as other parts of the state. But again, that goes back to said the good management and the exercising of our water rights.

00;37;08;08 - 00;37;24;15
Speaker 2
Yeah, that's true, Constance. And to be fair, to some degree, every project is different because every basin is different and some projects are a little bit overbuilt. So they look a little bit lower than than perhaps they would otherwise have if the reservoir wasn't as large volumetric.

00;37;25;01 - 00;37;36;26
Speaker 2
But it also goes back to. Almost like you're. You're darned if you do. You're darned if you don't. You know, because we're good stewards, it's almost as if we get punished. Well, you guys are doing such a great job here.

00;37;37;03 - 00;37;43;19
Speaker 2
Give us some water. You know, it's it's not fair, but that's just how it is. And that's why we've got people like you to address those things.

00;37;44;18 - 00;37;59;04
Speaker 1
And also why we have the water rights system in place to, again, kind of bring some structure to that and make sure that it is equitable on a junior versus senior level, as well as making sure that those who own the water rights continue to exercise them properly.

00;37;59;08 - 00;38;06;13
Speaker 2
That's right. Contrary to maybe what some believe, it's not a free for all. There is an order to the system and we follow the rules.

00;38;07;01 - 00;38;14;23
Speaker 1
Very good. All right. So we're getting close to the end of our time together. Is there anything else with regard to water rights that bears mentioning?

00;38;15;29 - 00;38;29;25
Speaker 2
I would probably say that even though it's TID idea itself as an institution that owns the rights, it's the community that really exercises the rights and together, hand in hand. I think we've just done an excellent job and have a great history and that leads me to believe we'll have a great future.

00;38;30;24 - 00;38;35;23
Speaker 1
Fantastic. I think that's a great way to wrap up. All right, Jason, thank you so much for being here.

00;38;35;26 - 00;38;36;19
Speaker 2
Thanks for having me.

00;38;37;16 - 00;38;54;16
Speaker 1
Thank you for tuning in to the TID water and Power podcast. You can find it on Facebook at Facebook.com/TurlockID on Instagram and Twitter at TurlockID and on LinkedIn as the Turlock Irrigation District. I'm your host, Constance Anderson.

00;38;54;26 - 00;38;56;02
Speaker 1
We'll see you again next time.