State laws hamper flood flow storage but one San Joaquin Valley water district cut through the red tape. Can others follow?

January 14, 2023
by Lois Henry
State and Merced County workers spent days before the recent set of storms trying to shore up levees on already swollen creeks and rivers. SOURCE Department of Water Resources Facebook Page.
Lois Henry

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It seems like such a no brainer: Grab the floodwater inundating California right now and shove it into our dried up aquifers for later use.

But water plus California never equals simple.

Yes, farmers and water districts can, legally, grab water from the state’s overflowing rivers, park it on their land and it will recharge the groundwater.

But if those farmers and districts want to claim any kind of ownership over that water later, they can’t. Not without a permit. And permits are costly, time consuming and overly complicated, according to critics.

Farmers and districts in some areas are taking flood water independently in order to relieve problems for people downstream. 

But there just isn’t a large-scale, systematic way for water agencies and farmers to absorb the current deluge and store it for future use, mostly because of regulatory hurdles, critics say.

Cutting through the red tape

The Merced Irrigation District, however, launched a pilot project last summer with technical and financial help from the California Department of Water Resources that may serve as a template for other districts. The goal is to shunt damaging flood waters away from homes and businesses and be able to access it later.

“Diverted flood waters under this permit are intended to benefit lands outside of MID boundaries but within the same groundwater basin as MID,” explained Hicham Eltal, deputy general manager of Merced Irrigation District. The project is intended to alleviate flooding on area roadways and benefit lands where growers don’t have access to surface water that have suffered subsidence, land sinking. 

The district has been working for several years on the concept. It involves taking water directly from an individual creek and spreading it over agricultural lands where farmers have volunteered to participate.

It’s complicated and required multiple permits from multiple state agencies and for the state Water Resources Control Board permitting division to do a lot of “outside the box thinking,” Eltal said.

“But I’m very pleased so far with how it’s working,” he said Friday evening, as the state braced for another set of storms that brought worse flooding to the already besieged Merced region.

Merced Irrigation District flood project to move water in three diversion steps.

Hoping to follow their lead

Other agricultural water watchers called the Merced Irrigation District flood water permit a “breakthrough.”

The Merced permit relieves restrictions typically attached to temporary flood water permits that require applicants to do preliminary biological work, accounting, daily reporting and even, in some cases, to install fish screens, explained Sarah Woolf, owner of Water Wise, a water policy consulting agency in Fresno who has been working with the state on a better permitting structure for times of flood.

“We’re hopeful we can operate under something similar,” she said, in reference to her clients who can take flood water off the Chowchilla/Eastside Bypass, a structure built in Madera and Merced Counties to channel San Joaquin River flood water away from towns.

Even though the bypass is a flood channel, not a flowing river, Woolf said, it is being treated as a river under the permitting process, requiring environmental analysis and protections.

“Merced found a solution but it’s taken an emergency for (the state) to come up with this,” Woolf said. 

An emergency situation is quickly developing on the bypass, she said, as sidebars are deteriorating on major bridges from flood waters. 

“This is a real thing, these flood waters are causing serious damage,” Woolf said. “Meanwhile, permitting is bogged down in bureaucracy.” 

Som farmers are already taking water out of the bypass but “I guarantee you if landowners knew they could keep the groundwater credits, that would incentivize more people to take this water. Right or wrong, that’s the reality,” she said.

“An absolute crime”

Farmers and others in Madera County are so frustrated by the situation, the Board of Supervisors voted at its meeting Jan. 10 to draft a petition demanding all fees and permitting requirements for taking flood waters be waived for the next six months. They plan to hand deliver it to Governor Newsom. 

One farmer said getting a permit can take four to eight months.

“So, this water’s all going to be gone,” Larry Pietrowski told the board.

Supervisors agreed this could become a wasted opportunity.

“It’s an absolute crime that these flood flows can’t go where we need them,” Supervisor Jordan Wamhoff said at the meeting. “This isn’t a business decision, these flood flows belong to the people.”

“False narrative”

Yes, temporary flood water permits can be pricey and cumbersome, agreed Erik Ekdahl, Deputy Director of the Rights Division of the State Water Resources Control Board. 

But there is no eight-month, or even four-month, backlog of temporary flood water permit applications.

“No one has asked,” he said. “Madera can complain about the process, but the fact is they haven’t submitted an application to us.”

The division received eight temporary flood permit applications for this winter’s flood waters. Of those, Ekdahl said, three have been processed (including the one for Merced Irrigation District), two more will likely be done the week of Jan. 16-20. Of the remaining three, two don’t have facilities built yet and one from the City of Huron has historically been opposed by the Westlands Water District.

“There’s a sentiment that the Water Board isn’t doing anything to aid in capturing groundwater and that’s a false narrative,” Ekdahl said.

He acknowledged there are a number of permit applications for permanent rights to flood waters and those definitely take longer, years, to process.

But for temporary permits, he said the Water Board has worked to streamline that process and added extra staff to prioritize moving them through the system.

“A little frustrating”

Even the streamlined versions, though, take a lot of time, money and consultation. And results still aren’t clear, Woolf said. 

“Last year, the state needed more time for permit processing than we provided, so we canceled them,” she said. “We turned in applications early this year and some are still pending.”

Others called the process, even for streamlined temporary permits, downright “glacial.”

Matt Hurley, general manager for the McMullin Area Groundwater Sustainability Agency, applied in 2021 for flood waters on the San Joaquin River in winter 2022. His application was denied in May 2022, long after the period he was applying for.

Now it’s too late to apply for current flood water. 

He’s planning to file his application for potential 2023-2024 winter floods next month.

“It’s a little frustrating, he said of the process.

Existing laws not cutting it

The crux of the problem goes back to the fact that California didn’t regulate groundwater until passage of the Sustainable Management Groundwater Act (SGMA) in 2014. The state’s water laws apply to surface water and there hasn’t been any real work to incorporate its obvious connection to groundwater.

Meanwhile, SGMA requires newly formed groundwater sustainability agencies (GSAs) to account for groundwater and replenish aquifers. Flood water is the only water that’s still “up for grabs” in California. But, again, without a permit, recharged floodwater can’t be claimed and counted by the GSA.

“Solving our groundwater problems with flood flows is the right concept but there hasn’t been the policy support to enact it,” Woolf said. “State regulatory agencies are still operating under old surface water laws.”

That needs to evolve quickly as the state adapts to a changing climate expected to bring more and longer periods of drought interspersed by occasional big, wet winters that produce more rain than snow.

“Existing laws just aren’t built for this.”

– SJV Water reporter Jesse Vad contributed to this story

SJV Water is an independent, nonprofit news site dedicated to covering water in the San Joaquin Valley. Get inside access to SJV Water by becoming a member.


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