The Tuolumne: The Journey of a River and the Story of Its Water

THE TUOLUMNE: THE JOURNEY OF A RIVER AND THE STORY OF ITS WATER A Paper Submitted For Completion of Senior Research for the College of Arts and Sciences Stetson University By Kathryn Nathenson In Partial Fulfillment of the Requirements for the Degree of Bachelor of Arts Environmental Science Advisor: Dr. J. Anthony Abbott, PhD April 2016 i. Table of Contents Table of Contents i. List of Illustrations ii. List of Tables iii. Acknowledgements iv. Abstract v. Introduction and Literature Review 1 Study Area 4 Methodology 6 Observations and Data Analysis 9 Conclusions 13 Works Cited 16 ii. List of Illustrations Illustration I: The California Drought and the Hetch Hetchy Valley 3 Illustration II: The Tuolumne River’s Path from Yosemite to San Francisco 4 Illustration III: A Visual of Prior Appropriation 8 iii. List of Tables Table I: The Appropriated Rights of the Tuolumne River 9 Table II: Some Notable Appropriated Rights on the Tuolumne River 10 iv. Acknowledgements I would like to thank the Stetson Undergraduate Research Council for awarding me a SURE grant of which I conducted this research, my mentors Drs. Tony Abbott, Wendy Anderson, and Kimberly Reiter, and all of the friends and family that helped support me during this long but rewarding process. v. Abstract Water is life. It shapes our surroundings, it nourishes everything that lives and cleanses that which decays. We use water in so many different ways and an abundance or a decline in water supply causes massive repercussions on our livelihoods. The Tuolumne River is a freshwater river that originates in the Hetch Hetchy Valley in Yosemite National Park, a part of the High Sierra Nevada Mountain Range. This river has a rich and controversial history, and is to this day still incredibly important to the central valley of California. The ways in which society shapes how this water is used has very much altered the historical trajectory of the state, and its people. Therefore it is worth understanding this relationship between policy and human perception of a resource. The fundamental question in water policy is: what really is water? Is it a commodity? A right? Or something that transcends human use, that is, is water a physical entity bearing its own rights? By analyzing the various interpretations of the “beneficial use” clause in western prior appropriation and by following the uses of the water westward along the Tuolumne River towards San Francisco we will be able to view very narrowly how residents along the river categorize water, and identify some of the cultural repercussions that are very real during the current drought. California will have some serious problems in the coming decades as the hydrological systems irreparably are changed and the population and tourism industry continues to rise.Nathenson 1 I. Introduction and Literature Review What do we do when our rivers begin to run dry? When our tributaries no longer trickle? When our aquifers are reduced to puddles? These questions are becoming a reality as the Western United States is entering the fourth catastrophic year of a decade’s long drought. When our water systems begin to fail we are forced as a society to choose how and why we allocate water. This becomes both ethically and politically difficult to decide as many different ways water is used are important. We can allocate the water towards our economy by defining water as a commodity that is economically beneficial in the buying and selling of goods. We can allocate the water towards ourselves as an anthropogenic right that is our access to clean water to drink, bath with and use in other ways as a fundamental human right. We can acknowledge that the natural systems to which water systems run through have intrinsic rights to not only survive, but also thrive, and allocate water towards the public trusts that we recognize as important. But how do you decide? I believe that all of these three sample utilizations can all be argued to be important current uses for water, but at the point that our water starts to drastically reduce in quantity there will need to be an argument for one above all. California water right law, or the Prior Appropriation system, complicates the current and future allocation of water, as under the Beneficial Use Clause almost anything that helps benefit the public as a whole is a justified allocation and can earn a water right. The state of water and legality is a very important issue in the state of California, which is by far one of the states seeing some of the most damage caused by the drought. California is an important state as it holds four out of the twenty most populated city centers in the entire country (the second most densely populated city after New York City is Los Angeles.) California is both an important center of international tourism and one of the most important agricultural hubs in Nathenson 2 the country with the central valley producing upwards of %13 of our country’s agricultural goods (USGS 2015). It is undeniable that California is politically and economically a powerhouse, but it also houses some of the most fragile and important ecosystems in the country: the redwoods, Yosemite National Park, Mono Lake and many others. The human importance assigned to this state is problematic, because in terms of carrying capacity of people living in a place and utilizing the fixed set of available resources, California is using way too much, there are too many people and markets dependent on a state that could be categorized as a desert. To put this in perspective the Hetchy Hetchy Valley of Yosemite National Park is a part of the Sierra Nevadas and releases high amounts of water into the system via snowmelt (Water Resources & Information Engineering Inc. 2007.) It is considered to be relatively wet in comparison to other parts of the state, but this valley is only a few hundred miles away from Death Valley National Park of the Mojave Desert which is considered to be the most intensely dry region in the entire country. In terms of ecosystems these are side by side. The implications of drought (as seen in Illustration I) have been and will continue to be felt by the state of California and thus it is important that a keen eye is directed towards how they are allocating water. This creates a disparity in the current system of prior appropriation and beneficial use; thus by analyzing the different interpretations of this clause we are able to seek a better understanding of if the current system is functioning. Furthermore by seeing the system in action, via analyzing the water rights attached to an actual river we are able to see how water is really being used. By completing an analysis of the prior appropriation data of the Tuolumne River originating in the Hetch Hetchy Valley of Yosemite National Park I will be able to represent how water is being used, and then by applying both a utilitarian and consequentialist ethical analysis I will attempt to explain why some utilizations of water are better than others for this particular region. Water is incredibly Nathenson 3 important to the viability of not only our planet, but our continuation as a species, and without prioritizing how we define our water use and what motivates the use of it we are going to very quickly see horrific consequences. Illustration I: The California Drought and the Hetch Hetchy Valley Drought is a subject that in both recent and past years has received a great deal of attention. Thus the scholarship available on drought, especially on the drought in the western United States, is immense. The materials involved in a project like this can be hard to categorize and even harder to compare side by side; for the intersection between a statistical analysis of data and an ethical evaluation exists but is contingent on what concept unifies the two. In regards to this project the concept that one can analyze both via data and ethics is prior appropriation. Within the literature there is a unanimous consensus that the water systems of the United States are in jeopardy and that something must be done to protect the future viability of these systems (Wescoat et al 2003.) What is not universally agreed upon is what the underlying problem is: the water allocation Nathenson 4 systems themselves or our social and political utilizations of these systems (i.e. is it us or our system?) Many people disagree on whether or not prior appropriation is an operational system in an area with a high density of people and economies and a restriction of water (Podolak et al 2015.) Historically most seemed to agree that while prior appropriation was a fully functioning system of water allocation during the first American settlements, with a rapidly increasing population and steady amount of water this system does not seem to hold up as well contemporarily for most scholars. There is also a high density of literature on environmental ethics, one of the most famous being a legal essay titled “Do Trees Have Standing” which explores the ethical potential of assigning legal value to environmental entities (Stone 1974.) The literature tries to grapple with the difficulty of choosing one entity over the other as they are all important anthropogenic utilizations. II. Study Area Illustration II: The Tuolumne River’s Path from Yosemite to San Francisco Many of the surface water bodies in the western United States utilize the prior appropriation water allocation system to divide the water rights, thus there are multiple sites that would qualify for an analysis on prior appropriation. However in order to see a fuller picture of Nathenson 5 how water is being used and apply an ethical framework to the uses the study area would necessitate a water body that moves through the three categories of use: commodity, anthropogenic right and natural resource. Thus the water body chosen was the Tuolumne River, a river whose journey is rather unique as it originates in the high Sierra Nevada mountains in Yosemite National Park (thus it starts its journey as a natural resource) and ends its journey a couple hundred miles westward in the taps of San Francisco (thus ending as an anthropogenic right.) This river journeys through some of the most intensively farmed areas of the central valley of California, and is channeled into diversions, reservoirs and irrigation canals (Epke et al 2010.) The Tuolumne River has a unique history in the context of the environmental movement as the headwaters of the river were not diverted until after Yosemite National Park had already received its designation. San Francisco, who still to this day owns the water rights to the Hetch Hetchy Valley and Reservoir, suffered a massive earthquake and fire in 1906 (Righter 2005) and internally decided that their water infrastructure and source was not adequate for the growing city. Yosemite was already a nationally protected park, and newly protected at that, thus San Francisco’s subsequent petition for the water rights caused an uproar amongst the preservationists that had begun to petition for the inherent value of land. To have the rights to the water San Francisco needed a congressional act to be passed, and they received this after a tumultuous and heated series of hearings. The problem was this: to grant access to resources in the newly created national parks could theoretically set a precedent that would undermine the very concept of a preservation and national parks. Furthermore our country was split between John Muir’s preservationist form of land management and Gifford Pinchot’s conservationist form of land management; no one was quite sure how the last of our natural ecosystems should Nathenson 6 be treated and thus it was less of a debate about if natural resources have merit alone, but more of a debate about how resources should be managed to begin with. This site is important both in its history as a point of contention within the earlier debates about resource use and how it functions currently as an example of water allocation. III. Methodology To identify the water rights attached to the Tuolumne River I accessed the public records of the river through the California Water Boards website. This governmental website has a GIS program (eWrims) that allows one to find either an individual right or a grouping of rights by a number of criteria. Thus I located the rights associated with the Tuolumne Watershed (which would include all of the diversions coming off of the main Tuolumne) and exported the data to an excel file. Within this excel sheet I focused on two main criteria: the name of the water right owner and what type of right it was classified as. I applied a few different types of data analysis, I found the total number of water rights on the river, I grouped them into the differing categorizations of use, i.e. “corporative right,” found how many rights were in group, and then identified significant right owners, those that owned multiple rights or were particularly unusual rights owners. From these groupings I was able to find the percentages of each group and major owners from the total number of rights. The methodology for my ethical analysis is slightly less forward as it includes a certain amount of personal perception. Fundamentally I utilized different journal articles that had conflicting views on prior appropriation and the allocation of water in the west. After finding the ethical frameworks to analyze the three categories of use it was possible to have a less biased and more focused evaluation of each category and the system as a whole. Nathenson 7 The most important part of my methodology is the way in which the terminology has been defined, thus below are the definitions used for the most important concepts. The ethical frameworks that I have adapted are the utilitarian and consequentialist approaches to outcome. Under the utilitarian framework of ethical value each category of use will be evaluated based on if it is the most beneficial to the public as a whole, “the greatest good for the greatest number.” Consequentialism on the other hand focuses on the how the outcome alters our perception of the action. The ethical value of a category will reside in what the likely long term outcome is, as all chooses made will be a mean to an ultimate end. It is important to note that all of the three categories are in some ways anthropogenic in nature, as we are defining the ways water is important to begin with. Prior Appropriation (Illustration III): The legal system of water allocation that dominates in the western united states. Prior appropriation was founded as a means to allocate water during the expansion into the west during the nineteenth century, it parallels the Homestead Act of 1862 which gave rights to land if it was farmed for a number of years. Similarly Prior Appropriation was created to enable settlers to more easily utilize water to farm or settle especially since water was not always available on the land that they live. If someone could justify that they were using it in a way that was beneficial for the public they could then divert the water. The system creates a series of senior and junior rights owners whose rights are contingent on the water available, i.e. if there is less water the senior water rights holders have first access to their water. “First in time, first in right.” (Hall 2002.) Nathenson 8 Illustration III: A Visual of Prior Appropriation Beneficial use: The beneficial use clause is a fundamental part of the system of prior appropriation, if users could declare they were using the water to benefit the public they would likely be allowed to gain rights. Problematic because benefit to the public could come in many different forms. Economic perpetuation could help the public, personal water wells could help the public, etc. Diversion: To divert the water is to in some form remove the water from the original body via canal, pipe or aqueduct. Commodity: An entity that is a part of an economic transaction. Involved in the process of buying and selling a good or service. Natural Resource: Water that has intrinsic rights to exist without diversion, in its natural state to benefit an ecosystem. Nathenson 9 Anthropogenic Right: The rights of people to clean water to drink, bathe in and use for other important purposes. Utilitarianism: the ethical doctrine that virtue is based on utility, and that conduct should be directed toward promoting the greatest happiness of the greatest number of persons. (Wolff 2009.) Consequentialism: an approach to Ethics that argues that the morality of an action is contingent on the action's outcome or consequence. Thus, a morally right action is one that produces a good outcome or result, and the consequences of an action or rule generally outweigh all other considerations, does the ends justify the means? (Tully 2006) IV. Observations and Data Analysis Table I: The Appropriated Rights of the Tuolumne River The data extracted from eWrims exemplified a very diverse distribution of water right classifications on this river of a total of 386 prior appropriation rights. Table I above contains the data that was found in each category. The data reveals that of these rights the top three classifications were individual rights: a total of 169, 43.7% and most akin to anthropogenic rights, corporative rights: a total of 106 rights, 27.4% and most akin to commodity rights, and in Nathenson 10 third governmental rights: with a total of 61 rights, 15% and most akin to the natural resource category. Some of the other less prominent classifications were the rights of trusts, organizations, companies, and partners. By a shallow analysis of the data one would assume that individual rights of people had the most power on this river, but it is important to remember that most individual right holders were only holding one or two rights, for example Ross owns one right and Hatler owns two. Those that will have more control over this river are those that own a number of collective rights; these rights owners tended to be those in the corporative category. These owners tended to be Golf courses, lumber mills and irrigation districts, entities that engage in commodity based activities. Most of these activities involve high volumes of water and often the products produced in these corporations are exported out of the state of California. Some other interesting truths the data revealed was the easy way that data could be manipulated in a way that was not completely honest. Stanislaus National Forest 58 rights: 36 corporation, 16 governmental Mountain Springs Golf LLC 21 Modesto Irrigation District 20 Sierra Pacific Industries 17 Tuolumne Utilities District 9 San Francisco 8 Table II: Some Notable Appropriated Rights on the Tuolumne River As you can see from Table II above, within the water rights the top owner was Stanislaus National Forest who owned a total of fifty-eight prior appropriation rights; but of those rights only sixteen are classified as governmental rights, with the other thirty-six classified as corporative rights. It would be very easy to manipulate the way the data is used to try and claim Nathenson 11 that the top user of the river is focused on environmental restoration and/or functionality, where in reality a major of the water of Stanislaus National Forest is used in some way in an economic transaction. What does this data tell us? It tells us that water is primarily being used as a commodity on this river, but that there are a diverse number of ways that water is being defined and allocated. Is this the right way to allocate this water? With such a decrease in water flow (USGS 2015) the allocation of the water on the Tuolumne River will continue to be questioned and studied, and diverting the highest amount of water to water as a commodity might be proven to be incorrect. So what is the right way to allocate the water? Under a utilitarian ethical model it is important to identify how each of the three categories benefit the entire population; “the greatest good for the greatest number.” Under the prior appropriation model of water allocation this is one of the fundamental principles, the beneficial use of water for the public. This is a problem though, because the utilitarian model fundamentally failures when one is trying to choose one allocation of water over another as the most important allocation. All of them are important for the public at large. Using water as a commodity benefits the public as a whole because it contributes to the economy that ultimately helps us all. More almonds, means more jobs, which means more paychecks and a continuation of the circle of supply and demand. Protecting natural systems benefits everyone because it preserves our natural environments which we might need for resources and to protect the viability of our planet. Also slightly less concrete of a benefit is the emotional and mental stimulation that our natural land helps promote, our connection to the untarnished environment is important for the mental health of our species. In regards to the utilitarian model of ethics the only allocation that would likely win for the most beneficial is the rights of people to water for physical necessity. Anthropogenic rights benefit people because they insure the basic necessity Nathenson 12 of life: water. People cannot live longer than a few days without some form of water intake, and thus it is necessary that people have access to clean water. California in fact just passed an amendment to their state constitution that stated “it is hereby declared to be the established policy of the state that every human being has the right to safe, clean, affordable and accessible water adequate for human consumption, cooking and sanitary purposes.” (California State Constitution 2016.) If one is utilizing economic utilitarianism, i.e. what adds most to the economy the discourse becomes slightly different. In a short term economic analysis it is clear that the utilization of the water as a commodity resource adds most to the economy (Rodriguez 2014.) Almonds are one of the agricultural entities grown in the central valley of California alongside the Tuolumne River. Almonds are a highly water intensive and extensive crop as they require water both will the ground is in use and when it lays fallow, it technically never lays fallow because you are always watering it (Holthaus 2015.) At face value almonds are a horrible choice for a water poor area as they use so much water, but almonds are an incredibly expensive luxury item and thus sell for a very high market price (in some places 60 cents an ounce.) Almonds are incredibly popular as both a tasty snack and as a fad source of nutrients, and thus people buy them in very high demand. It becomes a slightly more fuzzy picture if we look at the long term economic benefit, as long term could be anywhere from fifty years from now to centuries. With the longer term perspective I believe preserving the viability of ecosystems by allocating water as a natural resource has the greatest benefit for the greatest amount. Our ecosystems give us as a species so much: clean air, resources and mental stimuli, but we can so easily destroy them. Thus the long term economic benefit lies in us having these ecosystems functioning a long time from now and you could also argue national parks themselves add to the economy thus representing the long term economic benefit.Nathenson 13 The discourse becomes slightly more productive if an ethical consequentialist model is utilized. Consequentialism is the concept that the value of an entity, act, decision etc. is determined by the outcome rather than the means. Thus the better outcome is the better route “not the means but the end.” Under this model the most beneficial end result would be one in which the water would be in the best condition after a certain amount of time, say a century. By allocating water towards commodities as we currently do there is a grim picture in the future of water depletion in this area of the country, thus this fails as the ethically right choice. Anthropogenic rights also fail as there will always be more people moving to this area of the country and with a limited supply and an exponential need the water will also fall to drastically low conditions. Theoretically people should not even live in such a water sparse area, as they are living far beyond the carrying capacity of the land. The only allocation method that under the frame of consequentialism that succeeds in the end result is the allocation of water towards natural entities as it will continue to contribute to that environment and any fluctuation in water level and quality will be those that are inherent in nature. V. Conclusion: The Tuolumne River serves many different purposes, and thus is viewed as multiple entities. Sometimes it is a commodity that is to be used in capital projects, other times it is something with intrinsic value tied to its environmental impact. The Tuolumne River is unique because it covers a wide range of uses and values and has importance for a number of different entities that differ in purpose and environmental worldview. The motivations that drive members of the agricultural spheres versus those in municipal planning versus natural resource management are extremely different, yet they all value the water and would be greatly harmed if the water quantity or quality was severely jeopardized. Nathenson 14 What was once an interesting narrative about western prospecting and development is now an extremely serious issue of water misuse and drought stretching over a majority of the northwest. Due to a century of over-allocation of water rights (that are virtually untouchable) and a major population shift to some of the major metropolitan city centers of the northwest, there is an exponential increase in the water needed and a decrease in water available. Overuse has created a distorted hydrological cycle that increasingly becomes more dry and fragile with the higher quotas of water being pulled out of the system. An added component of the drought is the current El Nino weather event, which is simultaneously pouring large amounts of water in some places and causing extreme drought in others. The system is very unstable and will necessitate serious help in order to return to some sense of normalcy and stability. Legally this creates a bit of a bind with the current system of prior appropriation as people owning the rights are legally guaranteed to a certain amount of water. This cannot however continue for without a drastic change in water allocations not only will the natural systems start to collapse, but there will not be a usable amount of water for anyone! Some current solutions being explored to mediate the need for water with the available amount of water are systems like water banking (which is being used in California) and a system similar to carbon trading that allocates a certain amount of water to everyone and allows users to buy and trade their water to meet market demands (Australian Government Bureau of Meteorology 2016). In states like Oregon and Washington a different kind of legal precedent is taking place, and the state governments are starting to revoke certain water rights, which has caused both a legal and cultural outcry. Currently in Oregon a number of water rights belonging to lumber mills have begun to be revoked by the state as an attempt to mediate one of the worst summers of drought in recent years. This has caused quite an uproar as the revoking of these water rights is Nathenson 15 forcing the northwest to rewrite its system of water allocation and call into question a century of policy decision makers. Economically it is absolutely critical that California finds solutions to their water problems, as they are one of the major economic centers of not just the United States, but the entire world. With such a position of importance in the field of tourism and agriculture the Californian economy depends on an available water supply, and they must thus find solutions to minimize the use of water in non-critical sectors, for even though growing luxury demanded products like almonds or having large and water demanding resorts might create a fast earning, the protection of the water is necessary for the longevity of the Californian economy. It is incredibly unclear what would be the best solution in a place like California that is very much market driven but also containing a large amount of federal land. Fundamentally with such a high influx of people the drought has and will take a major toll on the culture of California. This state has been in a catastrophic drought for almost a decade, and a side effect of this is that people have become adjusted to life in a drought. Dry has become the “new normal.” This cultural desensitization to the drought has created citizens that are no longer worried about the drought, which makes it harder to create policy or even merely a cultural sensibility to address the problems. Californians have become distant to the problem, especially when their water is coming from hours away and they are not seeing on a daily basis the impact of the water use. The farmers however see it. The men and women living out by these Nathenson 16 water sources especially see the effects, and suffer because the larger and more senior water rights owners have first rights to the water. If we continue to abuse the water systems of the west we are severely jeopardizing the chances for the environment to recover and prosper. If we lose these environments we are destroying an irreplaceable and important part of our country and our culture and there is little chance for redemption once the rivers begin to run dry. VI. Works Cited Australian Government Bureau of Meteorology. 2016. About the Water Market. http://www.nationalwatermarket.gov.au/about/ California. 2016. California Constitution Article 10: Water. www.leginfo.ca.gov/.const/.article_10 Epke, Gerhard, M. Finger, R. Lusardi, N. Marks, J. Mount, A. Nichols, S. Null, T. O'Rear, S. Purdy, A. Senter, J. Vier. 2010. Confluence: A Natural and Human History of the Tuolumne River Watershed. 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