After reading my last post, some of our knowledgeable citizens have reminded me that Tuolumne River Trust, Friends of the River and Restore the Delta have no true water rights to the Tuolumne River.* I’m aware of that. What they do have is the right to lobby for fair and just usage of water from all our rivers. To their credit, they sometimes succeed.

It’s easy to forget that surface water belongs to the public. Public trust doctrine goes back at least to the days of the Roman Empire and probably even further. It’s a simple concept: Anyone who tried to privatize water usage on a broad scale would face insurmountable difficulties from overwhelming opposition, for obvious reasons. It would be like trying to privatize air.

We’re all stakeholders in water use. At least since the 19^th century, when Charles Lux and Henry Miller began appropriating San Joaquin Valley river water for their own uses, water rights and usage have been highly politicized, often to the detriment of the public.

The Modesto Irrigation District’s (MID) investigation into Director Larry Byrd’s irrigation practices offers a case in point. After an investigation that proved Byrd had lied repeatedly about using groundwater for his out-of-district trees, Byrd and his supporters joined in jubilant celebration. Their joy, bound to be short-lived, resulted from a tie vote on a motion to continue the investigation. One of those votes to stop the investigation was Byrd’s own.

Byrd’s vote thus becomes a matter for the Fair Political Practices Commission (FPPC). That’s politics.

It’s also politics when a former congressman floats a bizarre theory in an attempt to justify or explain away Byrd’s usage of MID surface water on out-of-district property. For months, former Congressman John Duarte has argued that Byrd’s problems stem from MID’s lack of a “fringe parcel policy.”

Aside from a tacit admission that Byrd did indeed pump MID water out-of-district, Duarte’s fringe parcel policy dodge is classic example of the red herring fallacy. It’s intended to distract attention from the real issue by raising a bogus issue.

Even a cursory glance at the fringe parcel argument reveals its absurdity. Essentially, Duarte and others are arguing that when someone pumps MID surface water onto out-of-district land, it’s because the district lacks a fringe parcel policy. That argument is specious on the face of it. It’s a red herring and it stinks.

Red herring has always been sucker bait, but don’t be surprised if MID management rises and bites. When MID’s General Manager and Legal Counsel both enabled a sitting Director to vote in an obvious conflict of interest, it became starkly evident they wanted the investigation to end just as much as Byrd did.

What the 4Creeks investigation did reveal is that Byrd’s irrigation system on the Rodoni property was designed to irrigate out-of-district trees and Byrd knew they were out-of-district. The investigation also showed that Byrd could not have irrigated those out-of-district trees with groundwater, as he had previously claimed repeatedly.

Whether or not MID had a fringe parcel policy was not a factor of any kind in Byrd’s decision to pump MID surface water onto out-of-district acreage. Moreover, since surface water was the only other source available for his out-of-district trees than groundwater, it follows the Byrd must have used MID surface water for those same trees.

Larry Byrd was a member of the MID Board of Directors when the Nichols case was litigated in 2016. In that case, Kenneth Nichols argued that because he had used MID surface water on out-of-district property for years, he was entitled to sell his property as if it had full irrigation rights. The court ruled that MID and only MID was the ruling and final authority on irrigation allotments. The definition of “allotment” means water for use on acres within the district. That’s acres, not parcels.

One of the key figures omitted from the 4Creeks investigation is any estimate of how much MID surface water was used out-of-district. Although 4Creeks investigators refrained from the obvious logical inference that only MID surface could have irrigated the out-of-district trees, they did offer a powerful clue about how much water must have been involved when they reported that,

“Assuming the recorded pump hours are accurate, this approach is expected to conservatively overestimate groundwater extractions relative to the other, more detailed datasets.”

That is, even when overestimating the amount of groundwater available for use on the out-of-district trees, there was still a significant irrigation shortfall, a shortfall that could only have been met with MID surface water.

Prior to voting to end the investigation, MID Board Member Janice Keating said she had found the 4Creeks report difficult to understand. The responsible thing to do at that point would have been to ask for clarification of the issues she found confusing. Instead, Keating voted to end the investigation because it would, “Open a can of worms.”

Among the things Keating might have found confusing was the following odd finding:

“The monthly volumes derived from electrical data closely match the TruPoint delivery records for most years but suggest that surface water deliveries occur in a wider range of months that [sic] are captured in the TruPoint database (Figure 3).”

Yes, in part because “that” must mean “than” here, the statement is indeed confusing because it suggests MID’s TruPoint data and actual records don’t match. If true, the incongruence suggests a serious failing on MID’s part.

An even more disturbing admission was that,

“The actual surface water balance likely falls somewhere between the upper and lower bounds for each water year, but the width of these ranges, which span from deficit to surplus in all water years, prevents confident determination of whether surface water deliveries consistently met, exceeded, or fell short of crop irrigation requirements for the In-MID study unit. Any conclusion regarding the potential application of MID surface water to Out-MID areas must acknowledge this fundamental uncertainty inherent in the water balance methodology.”

That is, 4Creeks investigators couldn’t even determine how much MID surface water was used on the in-district trees, and if the investigators couldn’t figure out how much water was used, how on earth does MID reconcile water allotments, water bills and permitted vs unpermitted usage?

4Creeks investigators stated that their objective was, “To determine if surface water supplied by MID to the study site may have been applied to irrigated areas outside of the MID irrigation service area boundaries.” Based on data provided by MID itself, the investigators not only could not figure out how much water was used on in-district crops, they claimed they couldn’t even figure out whether Byrd used that surface water outside the district boundaries.

In other words, MID doesn’t know how much water it released onto Byrd’s property nor does it know where it went.

Officially, 4Creeks investigators reported the investigation into Larry Byrd’s irrigation practices on the AB La Grange Ranch was “inconclusive.” However, there are a number of unavoidable conclusions most anyone who reads the investigation could derive. Among those conclusions are the following:

• Larry Byrd lied when he said repeatedly that he used groundwater to irrigate his out-of-district trees.
• MID security systems for monitoring water use can be easily breached by unscrupulous irrigators.
• There are apparent discrepancies between raw data and MID’s TruPoint data reporting system.
• Failure to include testimony by former employees, ditch tenders, and experts on installation and maintenance of irrigation systems diminishes the creditability of the report.

The 4Creeks report also features another glaring omission. In addition to the orchard on the Rodoni property, Larry Byrd irrigates an orchard on the Rairden property. Both properties are part of the lease under the name, “AB La Grange Ranch.”

On the Rairden property, a far larger percentage of the trees are out-of-district than in-district. No study of that orchard was offered at all. Most anyone could reasonably assume that if data from that orchard were favorable to MID and Larry Byrd, it would have been highlighted. Instead, it appears investigation of the Rairden property was deliberately avoided.

In the final analysis, use or misuse of the Tuolumne River water MID irrigators and ratepayers depend on requires public oversight. Whether or not we have legislated rights, we’re all stakeholders in northern California rivers, whether the Sacramento, the Klamath, the San Joaquin, the Stanislaus, the Tuolumne, the Merced or the Kings.

When public officials and authorities fail their missions to fairly and accurately administer one of the most precious resources of the public trust, it’s up to the public to demand better.

That’s politics.

*One of those same alert readers pointed out that both Turlock Irrigation District and Oakdale Irrigation District are larger in total acreage than MID. MID is larger only insofar as it serves more customers, especially those who use MID electric power.