Kern County water users who sold millions of dollars worth of water to a program meant to help the environment said the arrangement made sense because the water was rightfully theirs.

Few would dispute that water that was purchased and stored in Kern County could be sold to the environmental water account.

But the sales were made easier by the fact that the state Department of Water Resources was cranking up water deliveries to unprecedented heights at the same time it was buying water back for the environment.

The general manager of one of the agencies that sold water through the program, Dennis Atkinson of the Tejon-Castaic Water District, acknowledged that the sales only made sense to him if state pumps were delivering more water than his district could immediately use.

In other words, the higher pumping levels not only took an environmental toll on the Delta, they also made water available to buy back to protect the Delta.

Was the state required to deliver all that water or could it have pumped less and potentially saved the cost of buying it back? Put another way, does Delta water belong to contractors or do environmental needs have priority?

The answer is unclear.

Kern County water districts have a contract that awards them about 1 million acre-feet of water a year. And as customers of the State Water Project, they have to make the same payments on the project's dams, pumps and canals no matter how much water they get.


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The state's water customers contend the contract obligates the state to make water available, and the contracts and simple fairness support that, at least to some degree.

On the other hand, a consolidated version of the full contract — which runs 348 pages and has nearly 40 amendments — appears to recognize that water shortages can develop "due to drought or any other cause whatsoever."

And the right to water in arid states is always conditional. The government can promise all the water it wants, but it can't make it rain.

Environmental laws, a constitutional requirement that water use be reasonable and beneficial and an ancient legal doctrine that ensures water is used in a way that considers public trust values — including the health of natural resources such as the Delta — further limit the use of water, making the question of who "owns" water complicated.

"Because it's called a right, people tend to think of it like the First Amendment," said Phil Isenberg, a former legislative leader and chairman of a Delta Vision task force appointed in 2007 by Gov. Arnold Schwarzenegger to figure out how to fix the Delta.

"The water rights system is a way of figuring out who is first in line when supplies aren't enough to satisfy all of the water needs."

One of the state's biggest difficulties in delivering water to users while protecting the environment is the fact that water has been dramatically overpromised, Isenberg said.

As the Delta Vision committee was wrapping up its work last year, a memo arrived that members had requested from the state agency that administers water rights.

It carried this sobering comparison: The average natural flow of water in the Delta watershed is 29 million acre-feet per year, while the face value of water rights in the same watershed is 245 million acre-feet, or more than eight times the average flow.

"I was dumbfounded," Isenberg said.

Not all of the water in those rights is actually used, some of the rights are double-counted and much of the water that is used finds its way back into rivers where it can be used again.

Nevertheless, the figures are convincing evidence to Isenberg and others that the state has promised far more water than it can deliver.

Further complicating matters, the State Water Project signed contracts with Kern County, Southern California and others at a time when plans called for dams to be built on North Coast rivers that would produce millions of additional acre-feet a year to spill into the Delta for contractors to use. Those dams were never built.

Faced with overpromised water, population growth, a sensitive environment and periodic droughts, it is no surprise California has difficulties managing water.

Those difficulties also are not new.

After the last major drought ended in 1992 a series of deals were struck to fix the system, culminating in 2000 with a plan known as "CalFed."

There may not have been enough water to satisfy farmers, cities and the environment, but when the deal was signed in 2000, the state was awash in money thanks to soaring real estate, stocks and dot-com enterprises.

One of the keys to the CalFed deal was the environmental water account.

The idea was to use the market to strike a new balance between the needs of the environment and people. The account would be used by regulators to enhance the environment by buying water from willing sellers, thereby reducing conflicts that arise when regulators take it away from water users.

In the absence of an environmental water account, water users faced the possibility of additional environmental restrictions, according to a 2001 report by the Legislative Analyst's Office. For that reason, the LAO said water users should help pay for the program.

"Since compliance with endangered species laws is a responsibility of the state and federal water projects, (the environmental water account) in effect reduces the compliance burden for these projects," the LAO found.

Instead, the environmental water account ended up relying almost exclusively on taxpayer-backed bond funds, and most of that money was spent to buy water stored in Kern County.