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Driving between her northern Central Valley rice fields with the family dog in tow, fifth-generation farmer Kim Gallagher points out the window to shorebirds, egrets and avocets fluttering across a thousand-acre sea of green flooded in six inches of water.

“People say agriculture uses so much water, but if you knew who lived in these areas and if you saw the animals taking advantage of it, you’d think there’s a lot more going on here,” Gallagher said. “This is where you’re going to find a Great Blue Heron. If you don’t want that type of bird then we shouldn’t be growing rice.”

The nearly 500,000 acres of sushi rice grown in the Sacramento Valley each year serve as the wetland habitat for thousands of migrating birds along the Pacific Coast. Yet the crop also uses more water than most, and about half of the product is exported to countries including Japan and South Korea.

Since the 1920s, farmers have grown rice in the Sacramento Valley, where old hands fly crop duster planes and rice emblems mark the county buildings. Now, due to decades-old agreements with the federal government, rice farmers like Gallagher are going relatively unscathed by unprecedented emergency water cuts to farmers this month as others fallow fields, wells go dry and low water levels imperil Chinook salmon, the native cold-water fish that play critical ecological roles and support a billion-dollar fishing industry.

A handful of districts supplying farmers including Gallagher are receiving nearly 2 million acre feet of water this drought year, enough to supply the city of Los Angeles for roughly four years. Their seniority is a function of the state’s complicated water rights system, which some experts say is ripe for reform as extreme drought magnifies the inequities within it.

Developed in the 19th century by miners who used water to blast gold out of the Sierra foothills, California water rights are based on a concept known as “first in time, first in right.”

The principle, which remains central to state water law today, roughly translates to “first come, first served” to a quantity of water from a natural source. During drought, rights are curtailed by state regulators from newest to oldest to protect water for residential use and human health and safety essentials.

Most farmers across the state who rely on the Central Valley Project, the nearly two dozen dams and hundreds of canals that make up the federal water allocation system, are getting 5% or less of their usual water supply this year.

The state water board’s most recent emergency order barred thousands of farmers, landowners and others from diverting water from the massive Sacramento-San Joaquin Delta watershed that stretches from Fresno to the Oregon border, forcing many to turn to groundwater pumping.

Some of them with rights claims predating 1914, the year California enacted its water rights law, say the State Water Resources Control Board lacks authority to curtail them and sued over the issue during the last punishing drought.

Meanwhile, districts like Gallagher’s that have contracts with the water project based on those rights, called the Sacramento and San Joaquin River Settlement Contractors, have never been cut off by more than 25% — even in the driest years.

The largest of this group is Glenn-Colusa Irrigation District, 260 square miles of land best known for rice growing. Its multistory pump station sits on a bend in the Sacramento River near where, in 1883, future state legislator Will S. Green nailed a paper notice to an oak tree claiming millions of gallons per minute of the river’s natural flow.

When the federal government was building the Central Valley Project in the 1940s, irrigators such as Glenn-Colusa sued, settling after nearly 20 years of negotiations for contracts to stored water from Shasta Lake, the state’s largest man-made reservoir.

Regardless of conditions, federal officials operating Shasta Dam are now obliged to fulfill those contracts to rice farmers and others along the San Joaquin River, with the expectation that there will be legal action if they don’t.

‘An unprecedented year’

Built by the federal government in the 1940s in the wake of the Great Depression, Shasta Lake is the cornerstone of the Central Valley Project.

The dam is operated by the federal Bureau of Reclamation, which is responsible for distributing water to farms and communities while protecting the watershed’s fish and wildlife. Although the two obligations are equal in the eyes of the law, they often conflict when there’s not enough water to go around.

Over the years, the impact of the perennial tug-of-war between competing interests has been felt in the increasing die-off of Chinook salmon, one of California’s most iconic fish species.

In April, just as rice farmers in the Sacramento Valley received water to flood their fields, record evaporation of snowpack on the Sierra Nevada mountains meant some 800,000 acre feet of water didn’t melt into reservoirs as expected.

Soon after, the State Water Resources Control Board told the Bureau of Reclamation that it violated requirements to keep water flowing through the watershed, in part by allocating too much to agriculture and failing to adequately prepare for drought after a dry 2020.

The bureau had initially aimed to preserve enough cold water in the reservoir to keep nearly half of this year’s young winter-run Chinook class alive. By July, it said those initial cold storage benchmarks could no longer be met and now expects a death rate of 80%.

According to Bureau of Reclamation Regional Director Ernest Conant, providing water to settlement contractors like Glenn-Colusa impacts storage levels. But predictions changed because of unexpectedly high rates of depletion downriver — evaporation and potentially unlawful diversions directly from waterways that are difficult to track.

“We started this year with a higher storage level than in previous critical years, certainly higher than 2015,” Conant said. “So, I mean, I think we have prudently planned. This is just an unprecedented year.”

Conant said the agency plans to take a critical look at the way it approaches weather forecasting as water managers throughout the West face record snowpack evaporation. This week, federal officials declared the first-ever shortage from the Colorado River as its largest reservoir, Arizona’s Lake Mead, fell to record lows.

‘An indicator from the ocean to the rivers’

Shasta Lake is currently at 29% capacity and falling. And without enough cold water in the reservoir, state officials are warning of a near complete loss of young Chinook salmon in warm waters of the Sacramento River, which runs from the Klamath mountains out to the San Francisco Bay.

Fall-run Chinook salmon, which aren’t endangered but support California’s commercial salmon fishing industry, stand to be adversely affected by drought conditions as well, with the potential for lasting effects on future populations that could raise retail prices in the long run.

Jordan Traverso, a spokesperson for the California Department of Fish and Wildlife, said that the mortality of adult endangered salmon that hadn’t had the chance to spawn was more than 20% higher than average this year due to dry river conditions and high water temperatures.

“The greater challenge for winter-run Chinook salmon in 2021 is ensuring that suitable water temperatures can be maintained in the Sacramento River for the developing eggs and embryos that must remain in the gravel before hatching,” she said in an email.

The winter-run Chinook salmon native to the Sacramento River are born in freshwater rivers, journey to sea and live in the Pacific for two to three years before coming back as adults to spawn the next generation.

The fish historically swam high into the mountains to spawn in cold water, but since the construction of Shasta Dam, they have adapted to breed in front of it.

Cold water releases into the Sacramento River are meant to preserve water temperatures at or below 56 degrees, keeping eggs and young salmon from dying in the warm river. Dwindling cold water in the reservoir means less is available for the fish.

“Winter-run Chinook is a species that’s teetering on the verge of extinction, so losing a whole year class really does not help,” said Andrew Rypel, a fish ecologist at UC Davis.

In the 1960s, adult spawning classes were more than 100,000 large, he said. Now that number is 10,000 in a good year.

Unlike rice farmers who benefit from a water rights system that prioritizes seniority, the ancestors of Winnemem Wintu tribe leader Caleen Sisk, who fished Chinook out of the same river for thousands of years, were dispossessed by it.

Construction of Shasta Dam flooded the tribe’s lands, blocking access to ritual sites and breaking what the tribe sees as a covenant with the fish that once swam miles up their native McLoud River into the mountains.

Salmon are a critical part of the ecosystem, transferring nutrients from the sea to freshwater habitats along their journey, said Sisk, but she fears that message falls mostly on deaf ears among government agencies tasked with managing water.

“Can we do without salmon? Some people think we can. We believe we can’t,” she said. “They’re an indicator from the ocean to the rivers. It’s like miners going down into the mines without a canary. They can do it, but there’s gonna be a whole lot more problems.”

History repeating

A similar chain of events played out in California’s punishing 2014 drought, when only 5% of the year’s juvenile Chinook survived after the Bureau of Reclamation cited inaccurate computer models for underestimating the amount of cold water storage needed.

“We’re repeating that disaster and it’s very frustrating to watch,” said Doug Obegi, an attorney with the Natural Resources Defense Council in San Francisco.

“Drought makes the challenges much harder, but we have contracts that promise so much water that you have to drain the reservoirs to be able to meet them in a year like this,” he said, pointing to the Bureau of Reclamation’s legal obligations to districts including those that serve Sacramento Valley rice farmers.

If water rights can’t be fulfilled during drought years without letting close to an entire class of endangered Chinook die, Obegi thinks those districts’ contracts need to be reconsidered.

But Glenn-Colusa Irrigation District General Manager Thad Bettner said growers shouldn’t be forced to conserve unless urban areas are doing the same. Measures such as voluntary reductions, which he said the district implemented this year, or selling more water down south by fallowing fields, could help avoid disaster in the next drought.

“This is the water rights system that we inherited from our forefathers. All people say is ‘Well, maybe it’s not working.’ But it’s like, then what do you want to change it to?” Bettner said. “Until we have that sort of conversation, I think this is a system we know we can make work.”

Asked whether flooding fields like hers could have played a role in depleting the cold water pool for salmon, Gallagher said the answer is above her pay grade. She had hoped that letting one of her rice fields fallow and selling the water down south later in the season was doing her part to maintain storage.

“I don’t know how it could be my fault, and I don’t know how it could be [the bureau’s] fault. I just think we don’t have a system that’s working well in a drought year and we’re just doing our best to try and make it through,” she said.

Settlement contractors are one part of the legal battle over the state’s authority to regulate California’s longest-standing water users that makes its water rights system “wholly unsuited to the modern state and even more wholly unsuited to a region facing climate change,” said Michael Hanemann, environmental economist and former UC Berkeley professor.

After studying water rights for 30 years, he said the big question is whether the state can legislate structural changes to the system and extend the authority of regulating agencies to the most senior rights.

The state water board is currently “muddling through” with emergency regulations similar to those that Gov. Jerry Brown empowered the state water board to enact for the first time in 2014, Hanemann said.

“Up to now, legislation that was far reaching enough to change the system could never pass because the vested interests were too powerful,” Hanemann said. “All of this is good, but it’s not doing much without passing legislation.”

President Joe Biden wants to combat climate change by paying more farmers not to farm. But he’s already finding it’s hard to make that work.

His Agriculture Department is far behind its goal for enrolling new land in one program that has that goal, with participation being the lowest it’s been in more than three decades.

Even though the USDA this summer more than doubled key incentive payments for the program that encourages farmers and ranchers to leave land idle, high commodity prices are keeping it more worthwhile for growers to raise crops.

On top of that, the plan, known as the Conservation Reserve Program, takes land out of production for only 10 to 15 years — so those acres could release carbon into the atmosphere if the land is planted again and thus cancel out its environmental benefit.

The slow pace of enrollment and the temporary nature of the program raise questions about whether it will ever contribute significantly to efforts to reduce carbon emissions. It also shows how difficult it is for government programs to voluntarily draw in the farm industry to combat pollution.

“I guess my bottom line is, it’s not a great climate solution,” said agriculture and environment consultant Ferd Hoefner, who was the founding policy director for the nonprofit National Sustainable Agriculture Coalition.

Zach Ducheneaux, administrator of USDA’s Farm Service Agency, which oversees the conservation program, acknowledges that participation this year has been lower than hoped for, but he is still optimistic that the additional money the administration is providing will spur more landowners to join.

“Our position at the Farm Service Agency is that we have to start to talk about working lands and conservation in the same breath,” Ducheneaux said in an interview.

The added incentives the USDA has introduced “definitely made the program more attractive than it was last year,” said Cristel Zoebisch, policy specialist at the National Sustainable Agriculture Coalition.

But she noted that high commodity prices this year could be more lucrative than any additional money the Biden administration is offering. “It’s a trend that we’ve seen time and time again that whenever commodity prices are good, CRP enrollments go down,” Zoebisch said.

The Biden administration aims to enroll 4 million new acres in 2021 but only 2.8 million have been added so far.

Even last week, when the USDA announced the low enrollment, it touted the added benefits to the environment from the program. By participating in the decades-old initiative, USDA noted that farmers agree to undertake conservation measures such as planting trees or grass that prevent soil erosion, improve water quality or provide habitat for wildlife. In exchange, FSA pays farmers rent for the 10 to 15 years the land is enrolled and shares in the costs of making the conservation changes.

But it’s not clear how USDA measures whether the program is a good conservation effort. Ducheneaux said that the department relies on independent analysis from universities and environmental nonprofits to help quantify the program’s success.

USDA asserts the program has prevented more than 12 million tons of carbon dioxide from entering the atmosphere. Still, that’s a pittance compared with how much of the greenhouse gas the USDA said the ag industry releases each year (698 million metric tons in 2018).

Environmentalists praise certain aspects of the program, which doles out about $2 billion each year to farmers and ranchers. For instance, they have commended other conservation benefits that come from sign-ups, such as improved water quality.

Currently, there are nearly 21 million acres of farmland enrolled in CRP, but the program can enroll up to 25 million acres this year. Ducheneaux attributed the lower enrollment to the fact the program had been cut and ignored for years, even in times when commodity prices were suffering and farmers could have benefited from the added revenue.

“As it was being implemented in the past, folks weren’t being drawn to it,” Ducheneaux said. “The incentives clearly weren’t enough to get folks to even step out of the volatile commodity markets and engage in these conservation practices.”

The program also has supporters including many members of Congress and powerful ag interests that prefer voluntary incentives over mandatory regulations to slash emissions.

Rep. Cheri Bustos (D-Ill.), a House Agriculture Committee member, is among them and noted that CRP isn’t the only tool the Biden administration will use to fight climate change.

“This is a complex problem, and we have got to basically be able to look at what we’re going to be able to do together,” Bustos said. “Bring farmers to the table and figure out how we’re gonna have the most comprehensive approach possible.”

Bustos, who has 10,000 family farms in her Northwest Illinois district, also said she hoped the added financial incentives the administration has introduced will draw in more farmers.

“We can be part of the solution. We want to be part of the solution,” Bustos said. “But we’ve got to connect all those dots as far as being financially healthy, and being able to make a living and helping the environment.”

The American Farm Bureau Federation, the large farm lobby, also backs CRP, because it can help farmers and ranchers stay profitable.

Regions battling wildfires, extreme temperatures and drought such as the Pacific Northwest and the broader Western U.S. might have higher rates of enrollment this year, said Shelby Myers, an economist at the Farm Bureau.

Environmental groups, like the Theodore Roosevelt Conservation Partnership, are also backing the administration’s efforts to attract more farmers to the program.

But some conservationists are worried that FSA will take land that scores low on the environmental benefits index to meet the goal of enrolling more acres, simply to prove that the program fares better under Biden than it did under former President Donald Trump.

The quality of land enrolled in the program is a constant worry, Zoebisch said. She added that taking in land that scores low would be a waste of taxpayer dollars.

“There’s definitely a benefit to having certain parts of agricultural fields taken out of production and protected with permanent grasses and cover,” Zoebisch said. “But we also don’t want to be just allowing any land into the CRP general sign-up. We want it to be of high environmental benefit.”