html xmlns="http://www.w3.org/1999/xhtml" xml:lang="en" lang="en"> From the archives: When I'm done having a career in water, I'll tell you guys about the new water rights system I've come up with.

Tuesday, December 19, 2006

When I'm done having a career in water, I'll tell you guys about the new water rights system I've come up with.

FLOODPLAIN MANAGEMENT:
Protection comes at a price

Marysville Appeal-Democrat – 12/18/06
By John Dickey, staff writer

A Sacramento flood-control organization is studying the idea of paying off rural Sutter County farmers to keep their land green - and perhaps under water.

Buried in a 400-page Sacramento Area Flood Control Agency report is the notion that keeping parts of Sutter and Yolo counties near the Fremont Weir rural, and their levees marginal, could take the strain off downstream Sacramento levees in high water.

The unimproved levees will break in the rural areas, so the theory goes, lowering river levels during floods.

The idea has fueled talk in parts of Sutter County, where farmers are mulling over whether they would take the money and flood, and others are in disbelief, worried that their lives will be changed.

“Probably the most common thought is Big Brother in Sacramento has so much investment in that area, we're going to have to stick together to protect ourselves,” said Dick Akin, a Robbins area rancher and former Sutter County supervisor.

He said people were talking about it at the Robbins School play.

Roy Osterli II, a board member for RD 1001, which sits just north of the Natomas Basin, said he's talked to a half dozen people.

Their first take is “you've got to be kidding,” said Osterli. “Then, ‘You can't do this.'”

Sacramento has one of the lowest levels of flood protection of any U.S. city, according to the agency. Its levees provide only a 77-year level of flood protection. New Orleans had a 250-year level.

SAFCA, which is looking to improve flood control, has issued an environmental impact report on financing the work. The report briefly mentions the idea of acquiring easements in Sutter and Yolo counties.

Rural levee failures upstream and downstream of the Fremont Weir could lower river levels by a foot, according to the report. So preserving these would-be flood plains from development is a possible strategy SAFCA could pursue through voluntary easements.

“The easements would thus diminish the likelihood that the rural levees protecting these properties would be upgraded to an urban standard,” the report says.

Sutter County Supervisor Dan Silva, who is on SAFCA's board, said fixing the 63 miles of RD 1001 levees to withstand a 200-year flood really can't be justified based on the number of homes.

Under the cost-benefit analysis used to justify federal government spending on flood prevention, any spending has to result in savings that outweigh the costs, making it hard for rural areas to get their levees fixed.

But some say Sacramento would have to pay dearly to make Sutter County its flood plain. While the area is farmland, it's far from worthless.

“If they do this, they're not going to get it for nothing,” said Akin.

If flooding hits RD 1001, Osterli said several hundred acres of orchards near the river would flood. Also inundated would be the Rio La Paz Golf Club and nearby expensive homes.

Most important, the intersection of Highways 70 and 99 would flood, cutting off one of Yuba-Sutter's escape routes, said Osterli. Silva disagreed, saying he does not think the water would be “tremendously deep.”

Akin said economic issues to consider include where to move the 3 million bags of rice that are dried and stored in the Robbins area.

He and others would have to move farming headquarters out of the area, driving up costs.

Nothing is “written in stone” on an idea that has been kicked around for more than two years, said Silva.

“It's just a concept at this point,” he said.

Robert Mackensen, president of the Sutter County Taxpayers Association, was skeptical.

“We can't adequately evaluate it until we learn more about it, but it comes as a shock that SAFCA is considering writing off a section of Sutter County to protect a section of Sacramento,” said Mackensen. #

A few things bugged me when I read that article. In the first place, I was sad that growers a hundred miles north of us feel so estranged from the city that eats their produce that they describe any proposal as a hostile takeover. Second, I was mad that there was so much stupid rhetoric being thrown around. I’m sure it felt good to say, but stuff like calling Sacramento “Big Brother” is not going to help discussion. Also, I don’t believe the quotes. I’ve met a lot of growers and I do not believe that they would let a city flood when the choice is to flood their fields. I believe they would be out there in the rain with their tractors, helping take down levees. Finally, it doesn’t matter what they would do. In an emergency declaration, the folks at the Flood Center have a ton of authority. On our professional judgment, we can decide where to break levees; we can commandeer CalTrans equipment to do that; we can call the sheriff to enforce our decisions (and then fill sandbags). Several years later, we would pay damages.

But here’s what really gets me. The fastest, cheapest way to create another bypass is to buy easements from growers to spread flood flows on their fields. And that pisses me off. I mean, it is the most practical way and I would support it over armoring levees or flooding fields without permission in an emergency. In real life, to get to a practical solution that will ease flooding, I am all for buying easements in Sutter. Inside, however, I am pissed. Why should we pay them?

I am firmly convinced that when devised our system of owning land, we gave away too much. Those growers believe to the depths of their souls that they have a right to keep their land dry in the winter. When we deeded the land to a private owner, the right to shed water from a geographic sink was apparently part of that ownership. That might be fine when there wasn’t a city of millions living downstream, but now that it poses a threat to people’s lives and houses, why do a handful of farmers get to extort a windfall from all of us? Developers firmly believe that ownership of land gives them the right to build houses that will, very predictably, get drowned in floods or burn every ten years. And now, our society has to buy those rights back, pay landowners millions of dollars to prevent practices that would cost us billions. I’m all about Coase, but I hate our starting assumptions. I wish we could start over and design new ideas of land ownership that take the larger community into account.

36 Comments:

Anonymous Anonymous said...

If the farmers upstream can prevent flooding on their land, why can't Sacramento do the same? I'm never going to get this community nonsense, it always seems that's just an excuse for taking something from someone else to get something you want. Like the stadium thing, you were all for using eminent domain (as I recall) to get the land to build a new stadium, because you like going to watch games.

It seems very reasonable to me that you would have to pay someone for the use of their land.

And, to be fair, you're mad at the farmers for living in a sink, then altering the environment to their liking. But, Sacramento is in a valley, and valleys are prone to flooding, and you want to alter the environment to prevent that.

Justin

4:54 PM  
Anonymous rigel said...

our system of property ownership has been broken for a long freakin time.
there's a really good book on squatting and squatters called "shadow cities" that touches on some of this stuff. the upshot, i think, is that our completely ridiculous system of "intellectual property" is based on a completely ridiculous system of physical property rights.

4:59 PM  
Blogger Megan said...

Because the water has to go somewhere, and there isn't enough money to build all the levees high enough for big floods. (Remember that the entire reach of levees is only as good as its weakest point, so reinforcing levees to move the flood somewhere else is an arms race.)

But we only pay them to put flood flows that historically sat on their land because that is how we conceive of things NOW. It makes just as much sense for them to pay us for the privilege of turning flood waters away.

And, they are few and economic damage to their lands would be small compared to the loss of a major city downstream.

I want to alter both environments to accommodate a new physical reality.

5:05 PM  
Anonymous Anonymous said...

Then get the government to buy their land back.

Justin

5:09 PM  
Blogger LizardBreath said...

This is legally really interesting, and not an area I know anything about. Who owns the levees? I'm guessing the state, but they might be privately owned.

If the levees are state owned, what keeps the state from ceasing to maintain them? I don't understand the source of the farmers' right to have levees maintained at a given level.

5:24 PM  
Anonymous Anonymous said...

Most important, the intersection of Highways 70 and 99 would flood, cutting off one of Yuba-Sutter's escape routes, said Osterli. Silva disagreed, saying he does not think the water would be “tremendously deep.”

Maybe a foot and a half of water can be enough to render a roadway impassable to many vehicles. That's hardly "tremendously deep."

Peter
Iron Rails & Iron Weights

5:27 PM  
Anonymous Mitch said...

Assuming that farms take up a lot of land, hopefully there aren't too many owners to negotiate with. Then transaction costs aren't too bad.

I suppose Coase is more about efficiency than justice, but bringing in justice concerns is pretty hard to do. Especially if you want to be quantitative. If you did have the ability to start over, how would you structure things?

I definitely think that people living in Natomas should have to pay more toward paying off the farmers.

Also, is it impossible/unhelpful to build more upstream storage?

5:38 PM  
Blogger Megan said...

LB:
An appellate court case called Paterno came out last year, holding the state liable for all damages from all broken levees, including the ones built and maintained by other agencies. I'm ashamed that I haven't read it, but my understanding is that Judge Golden decided that the entire state benefits from the existence of the levee system and also from the deferred costs of deferred maintaince.

When Paterno came out everyone was shocked by how completely the liability for damages was assigned to the state. The case has been appealed, and the Legislature has written bills trying to pass that liability down to smaller jurisdictions. It is a mess.

5:49 PM  
Blogger Megan said...

Mitch:
There is some stuff they can do with upstream storage. There are going to be fights over how much water to reserve every winter for summer crops. People who like to irrigate and drink water want a secure supply behind the reservoir gates for the several years. People who want to contain floods want those reservoirs drawn down to catch new flows.

Deciding how much to keep in your reservoir this year is a gamble that better weather prediction would help considerably.

*********
Transaction costs shouldn't have to be high, if the growers didn't have very dire views about government's intentions toward them

**********
You know, I actually am a pretty good embodiment of their fears, because if I had to start over again, I would make the many rights that are now bundled into fee simple ownership explicit and severable. And I would give a lot of thought to which way the Coasian payments should be flowing. I'm probably not as knee-jerk as growers fear, but I also wouldn't assign all that wealth the way it is assigned now.

5:57 PM  
Blogger LizardBreath said...

I just scanned Paterno, and this:

Flooding, particularly in the Sacramento Valley, is a
normal risk of land ownership, and if the SRFCP (or similar
works) did not exist, Paterno’s property would have flooded
anyway (and would have in 1955, 1964 and in many other years).
But over time artificial works became the natural condition
and parties are generally entitled to rely on them. (See
Clement, supra, 35 Cal.2d at p. 638; Paterno I, supra, 74
Cal.App.4th at p. 86; Beckley, supra, 205 Cal.App.2d at p. 751;
Van Alstyne, supra, 20 Hastings L.J. at pp. 454, 459, 492.)


strikes me as a mess of a decision.

A landowner buys land in a floodplain, and because the state has protected their land from flooding when reasonably possible, the state becomes obliged to protect it even when it becomes unreasonable. That's nutty.

(And Justin, does this change your feeling about the rights and wrongs of the situation? This isn't the state asking to use the land. This is the courts saying that the state must protect one property owner's land at the expense of anothers, or pay for the privilege of not doing so.)

6:01 PM  
Anonymous Jake said...

My parents live in Easton, PA. They bought some old farmhouse on 80 acres surrounded by other bits of farmland and fixed it up and generally enjoy life. The guy with the 40 acres across the street was going to sell it to a developer to build houses on. My dad didn't want this to happen, more or less because he wants to live surrounded by farmland, and so was trying to convince the guy not to sell it.

But when the nominal price of corn is about the same as it was 50 years ago, it's pretty clear that you can't make money farming, certainly not nearly the money you can make building houses. And there's something wrong about telling someone "hey, you should keep living a life that keeps you poor, because I find it aesthetically pleasing." So they bought the land, so that way houses won't get built on it.

Now... Natomas is different. I'm reluctant to employ the line of reasoning "We won't let you do X (build houses in a flood zone) because if something bad happpens, we are going to have to spend lots of money helping you out, no matter how much you claim you are accepting responsibility now" because I can easily imagine other values of X that would constrict my behavior in ways I wouldn't like.

6:01 PM  
Blogger Megan said...

Jake:
But people deciding to live in floodplains or in fireprone canyons impose so much work on the rest of us. Since they will make decisions to do that, and since I am not willing to let them drown or burn when their mistakes come due (and, despite Justin's current statements, I bet he'd be out there helping too), what better alternative do we have than preventing the problem through law?

6:07 PM  
Anonymous Jake said...

Well, sure. But does this mean I can't ride my motorcycle? Does this mean that my friends can't engage in the unprotected butt-sex? It's not exactly the same, but it's not entirely different either.

And LB: does it matter that the farmers were there first? If I had some levees protecting my land, and then someone came to me and said "hey, some rich folks built houses down in Sacramento, and we can't make the levees down there good enough to protect them, so we're gonna flood your land to save them", I'd naturally be upset. Not that if there was a flood happening right then and it was either my farmhouse or ten thousand houses somewhere else I wouldn't help break the levee, but for someone to deliberately plan on that?

6:17 PM  
Blogger LizardBreath said...

If I had some levees protecting my land, and then someone came to me and said "hey, some rich folks built houses down in Sacramento, and we can't make the levees down there good enough to protect them, so we're gonna flood your land to save them", I'd naturally be upset.

But you didn't have levees protecting your land. The state had decided that it was in the general public interest to protect your land by building levees at the time when they were built. How does that reasonably turn into private ownership of a right to have the state protect your land at public expense and in a manner that's not in the general public interest forever?

6:24 PM  
Blogger Megan said...

Not that if there was a flood happening right then and it was either my farmhouse or ten thousand houses somewhere else I wouldn't help break the levee, but for someone to deliberately plan on that?

But holy fuck Jake, why NOT plan on that, especially when the floods are inevitable? See, this is why I don't understand. If it isn't OK to prevent people from living in floodplains, and we know floods will come, and we know we need to put flood waters somewhere and we know those farms are in the original sink. Given those things, which is where we are, why not build gates that we can open to give floods a place to go, so that we aren't hoping we can break a levee in time. Why not arrange upfront payments to those growers, in the form of an easement or an option to flood (since those are the rights we live under now)?

Why make the inevitable hard to arrange at the last minute? And very expensive?

6:27 PM  
Blogger Megan said...

Jake:
Also, I think of those other examples (smoking, helmets, unprotected any-sex) as rights that accord to you out of your sovereignty over your body. I have more respect for that than I do for property rights, which I think should balance personal and collective needs.

6:34 PM  
Anonymous Jake said...

Ah, OK. We are in violent agreement on this point. I say buy an easement from the farmers to flood their land, and do it post-haste. That sort of planning ahead makes total sense, and it may very well turn out that the amount of money farmers want for the flood easement is less than the amount of money it would cost to build whatever grandiose levees are needed to protect the suburbs of Sacramento.

I was just objecting to changing what owning land means, and to compelling people to not do things because if something goes wrong other people will be compelled to spend money to fix it.

But... I have no objection to mandatory liability insurance for cars, and wonder if that means I shouldn't have an objection to mandatory flood insurance in flood-prone areas. Or mandatory earthquake insurance.

6:38 PM  
Anonymous Jake said...

Blah, I have to run. This is very interesting. I will be back later.

6:40 PM  
Blogger LizardBreath said...

I was just objecting to changing what owning land means, and to compelling people to not do things because if something goes wrong other people will be compelled to spend money to fix it.


You know, this is still screwy. How is the state's making a decision that it is not in the public interest to maintain a levee that is likely to cause significant property damage by funneling floodwaters toward a city 'changing what owning land means'? When did those property owners purchase the right to have the state flood Sacramento on their behalf?

It appears to be the law in California at this point that they have that right, but it's a nitwitted law.

6:42 PM  
Blogger Megan said...

Jake:
Yeah, I think we're agreed on the practical means (buy an easement) to get to a real-world solution.

BUT, we probably still disagree over what I very much believe, which is that when property rights were given out, too much was included. There was never a decision on anyone's part that landownership included a right to shove floods downstream. It just sorta happened over time, when there weren't a lot of consequences, and now somehow, people really, really believe that it is a fundament piece of what they own.

There was no good carefully-thought-out reason for it, only convention, and in this case it dictates who bears the costs of flood prevention. I don't see why those farmers are any more worthy of a tranfer of wealth than any other members of our community.

6:47 PM  
Blogger Megan said...

LB:
Paterno is bad news. I'm hoping it gets overturned.

When did those property owners purchase the right to have the state flood Sacramento on their behalf?

YEAH! Right on!

6:51 PM  
Anonymous Anonymous said...

lizardbreath, the flip side of that would be the government saying we're going to destroy the farmer's land to save the city's land.

The solution seems obvious to me, protect Sacarmento better. Or, if Sacramento is in a position where it can't be better protected, then, floods are just a risk of living there.

Justin

6:57 PM  
Blogger LizardBreath said...

lizardbreath, the flip side of that would be the government saying we're going to destroy the farmer's land to save the city's land.

But the government isn't going to destroy the farmer's land. The flood is going to damage the farmers' land. All the government is going to do is stop actively protecting the farmers' land from floods when it endangers a city downstream.

What (other than a bad judicial decision) gives the farmers the right to compel the government to protect them from a natural hazard, when that protection hurts others?

7:06 PM  
Blogger Megan said...

But Justin, why should farmers in the Sutter Basin get to have dry lands in the winter? Before their levee districts built levees, the Sutter sink flooded every year. Why do should those farmers get to push that water off their lands with levees when people downstream will lose their houses?

Both lands are historical sinks. The Coasian exchange is whether we pay them to get wet in the winter or they pay us to stay dry in the winter. Since (pre-Paterno) I can't account for their right to stay dry (although those farmers clearly believe they have one), I don't see why the transfer of wealth should work in their favor.

8:23 PM  
Anonymous Jake said...

But at the time that the Sutter Basin levees were built, wasn't the relative value of the land protected by them vs. the land in Sacramento different?

Isn't there some sort of detrimental reliance here, where the state builds the levees to protect your land, and certainly gives you no reason not to believe that they are going to stop maintaining them in the future, so you build up your farm buildings because they won't be flooded away (which is why the state built the levees in the first place!), and then the state decides that they aren't going to support them any more?

I think that the way we handle flood control is profoundly screwy, and needs changing, but I think it's reasonable to compensate the folk who are going to get screwed by transitioning to a more rational system.

(And I think that River Islands shouldn't be built, either. To the extent that there's an approval process that has to be gone through, by all means look to the future and say "this is a bad idea, sorry.")

10:44 PM  
Anonymous Anonymous said...

Because the guarantee of levees was already made. The government stepped in and told them they would be protected.

If the state wanted to give the levees back to the county up there, and let them deal with it, I suppose that might be acceptable.

But, it likely still leaves Sacramento under water.

Justin

11:45 PM  
Blogger Dennis said...

Aren't floods the whole reason that land is good for growing crops in the first place? Isn't the fact that they don't flood every year part of the reason they need to use so much fertalizer and stuff? Just wondering.

As for personal risk choice, I like the example of motorcycle helmets. I totally voted for them. You can't guarantee me that motorcycle riders all had enough health insurance to cover their head-trauma, and I didn't want to pay for their visit to the city hospital w/ my tax $ if it was avoidable. I bet the cost on society went down when the helmet laws went into place. It's simple accounting, and I think that's what laws are for. I'm sorry some biker can't enjoy the wind thru his hair... too bad buddy, some uninsured guy ruined it for you, not me.

You wanna live on an island? I say require flood insurance. It's the cost to live there. There are other places to live.

If I run for office, it's going to be on the platform of "accounting for externalities!" (Which is why I would instantly lose.) History and the news are FULL of examples of someone getting rich while imposing huge costs upon society, nature, the future, or (usually) all three.

11:46 PM  
Anonymous Anonymous said...

Damn all this flood talk. I live in Natomas with my family. And my father has Ph.D. in water engineering. Don't think he knew about the flood risks when he bought the house shortly before moving to Sacramento. But he sure does now. He mentioned some emergency evacuation routes. I don't remember what freeway to take for any levee failures. We should really be more worried, especially considering that we're originally from Bangladesh.

-- chaos lurker

12:45 AM  
Anonymous Anonymous said...

Rigel, I don't think there is any going back to older forms of ownership or concepts of property. It seems to me that it is too deeply intertwined with modern ideas of 'individualism' and 'freedom'. If anything -and if desoto's influence or the growth of neo-liberalism is anything to go by- I think the trend is to enshrine concepts of private property even further.

My american history is woeful, but maybe the last people who had such ideas and practices were destroyed by the settlers?

I don't know how many squatters there are but I think a substantial amount of slum dwelling is accounted for by an informal housing market.

4:24 AM  
Blogger LizardBreath said...

Because the guarantee of levees was already made. The government stepped in and told them they would be protected.

See, I think this is false as a matter of history. I don't believe that there's any event you can point to where the government made a deal with the landowners that their land would be protected from flooding forever regardless of the ill effects on other landowners. The courts are choosing to treat the initial building of the levees as such a promise, but there's nothing more specific than that.

If you want to make it about detrimental reliance, I'd be fine with one-time compensation for the cost of improvements to the land vulnerable to flood damage and made after the levees were built. But that's different from saying that the farmers have a property right to land with government protection from flooding.

6:55 AM  
Anonymous Anonymous said...

Isn't the current system really the easement approach without protracted negotiation? The levees are intended to protect everyone in normal years, but in extreme years we accept flooding in low density areas to protect flood prone, high density areas, like Natomas. I'm assuming that the levees are better maintained in Natomas, based on previous breaks that always seem to happen in rural areas.

Sure negotiated easements seem like a better approach, but more difficult. How do you deal with the hold up problem?.

By the way, for those of us out of the area for a few years, can you explain what is/are "River Islands?"

Anon4, who did not know that Natomas used to be Lago Americano.

8:19 AM  
Anonymous Anonymous said...

Forgot to add to the above: After it's all over we compensate the rural landowners that flooded. We would have compensated the flooded in Natomas as well (insurance or not), but it would have cost a lot more.

A4

8:23 AM  
Anonymous rigel said...

billo:
i'm not suggesting that we "go back" to previous models of property rights. they were obviously inadequate in accounting for externalities, which is why they evolved. i would suggest, however, that by handing over ever-more rights over property to the individual (in a kneejerk fashion, without balancing those interests against those of the community), we are making the concepts increasingly brittle. at some point, it will break, and a new economy of property will arise out of the "informal" market, much as we are seeing the ever more desperate attempts by moneyed interests at consolidating intellectual property rights making the business models less and less sustainable, which in turn drives these new grassroots models of promotion and revenue generation, even while people are freely trading such "property".
(read the book, it's pretty good).

12:41 AM  
Anonymous Anonymous said...

Rigel, sorry to disagree with you here , but I don't think they "evolved". Sure, they changed and if that's what you mean then fair enough. I'm sceptical of using the word 'evolved' because it usually implies some form of advancement.

Secondly, the reason that private property rights came to predominate was, in my opinion, because they were instituted by political power.

I think it is also deeply intertwined with the history of capitalism and less to do with externalities. So, for example, the idea that we first of all view things in terms of property and that these things are then alienable is not incidental to market rhetoric and market practices (see M.J. Radin, Contested Commodities).

Furthermore, I think the development of property rights went hand in hand with the growth of mercantile power (see Keith Hart's Mmemory Bank for this point). The idea that rights 'innocently' evolve has to, in my opinion, be questioned. Certainly there has been resistance to thinking of things as if they were just potential collateral (see Hobsbawm on 'Land' in the age of Revolution for attitudes to the land and E.P. Thompson's classic, the Moral economy in Customs in Common).

One could also look at this through the colonial lens and see the role of colonial powers in altering the idea of rights. But the main point remains, events like the enclosure movement are political events and it is , therefore, erroneous (in my opinion) to talk about them 'evolving' as if this were natural process.

I agree with what you're saying, but I don't know what "community" really means in late cpaitalism. In a similar vein, if our horizons have been narrowed to the present..i.e present consumption , then it is hard to see what type of commitment we have to future generations . (I tend to agree with the brilliant Jewish philosopher, Hans Jonas here: there's a deep strand of nihilsim in modern sensibilities).

Just to go back to your original point Rigel. It is quite remarkable to hear people talk about the possible death of people without batting an eyelid or the destruction of cities as if it were a "natural" phenomenon and something, therefore, to be accepted. "Illness" is, perhaps, too strong a word, but I share your sense of unease at such sentiments.

7:17 AM  
Blogger CharleyCarp said...

My first thought reading the post was whether this isn't controlled by Surocco v. Geary?

My second, and the litigation gods will strike me down for even thinking a thought like this, is that there's a similarity with Judge Clevenger's concurring opinion in Abrahim-Youri v. US: in that case, he posits a residual right of the sovereign -- a standing easement if you will -- to intervene and, if necessary, take property in the public good. The problem there was tautological: since the government sometimes takes property, it's entitled to take property, notwithstanding the Constitution. Nonetheless, Geary + Abrahim-Youri = a pre-existing easement to break a levee to save another parcel.

My non-legal thought is that this is a three little pigs problem. The pig who builds out of brick isn't responsible for the one who builds with straw, even if the wolf comes to and blows on the brick house first.

11:40 AM  
Anonymous rigel said...

billo:
you're ascribing certain value judgements to my use of the word "evolution" that are not part of my intent. by evolution i merely mean changing incrementally. and yes, the changes were driven by political concerns, which were in turn driven by financial ones, which were and are often exploitative and nefarious.

12:03 PM  

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