Justice Ronald B. Robie on California’s “New Normal”

Justice Robie’s keynote address to law symposium focuses on California’s water rights system and the implementation of the Sustainable Groundwater Management Act

Justice Ronald Robie began by noting the title of the conference, ‘The New Normal’, saying that he thought it an appropriate way of looking at where we are today. “I’ve been involved with these issues for a long time, and things are actually changing significantly,” he said. “I’d like to talk about some of those changes, some of the things they mean, and some of the things that are not yet fully taken care of.”

Turning to the issue of water rights, Justice Robie gave his thoughts on what he described as the state’s ‘truly wacky, and until now at times, dysfunctional’ water rights system. “They seem rather strong words,” he said. “But I participate in Dividing Waters, which is a group of water judges from the eleven Western states, and they just laugh at our system, particularly during droughts where their systems run pretty well, and we’re shuffling around trying to figure out what’s going on. Although fortunately, times are different today.”

“First of all, alone among the Western states, we still have riparian rights, notwithstanding all of the problems with respect to those rights,” he said. “We have until now and in the future, rather limited knowledge of their extent, which in theory is limited to the smallest parcel in single ownership over the last 166 years – that’s when we became a state. Try to prove one of those things in court.”

“Second, we have a common law groundwater system as outlined finally by the Supreme Court in City of Barstow vs. Mojave Water Agency after years of different iterations, but this common law system has enabled massive overdrafts in large areas of the state, creating a rather law of the jungle, particularly in times of shortage,” he said, noting that the Department of Water Resources recently released maps showing significant parts of California that are considered critically overdrafted.

“Time consuming adjudications are not efficient ways of eliminating overdraft,” Justice Robie cautioned, noting that the Antelope Valley adjudication recently concluded after 15 years. “Judge Komar asked me to mediate this case. I actually spent more than a year with the 50 lawyers and many of their clients arguing about reducing groundwater pumping from 170,000 acre-feet to 110,000 acre-feet. What people don’t realize, when you adjudicate a basin, the bottom line is that the court establishes the safe yield, and the goal of the adjudication is to get there. Imagine sitting in my court room, which I did for this year or so, with all these people, trying to convince them to cut back. ‘You go first’, ‘No, you go first’, all the time arguing about whether they had a legal right. So groundwater adjudications are not an efficient way of resolving groundwater problems.”

“Furthermore, even though it’s been demonstrated in many areas that there’s a direct relationship between groundwater pumping and interconnected streamflows and vice versa,” he said.  “Up until passage of the Sustainable Groundwater Management Act or SGMA in 2014, this relationship hadn’t been recognized in California law except by litigation on a case by case basis.  Most Western states have solved this problem by regulating surface and groundwater under the same systems in the same agency or agencies.”

“Although SGMA does nothing to change the common law of groundwater rights, it does offer a somewhat long-term opportunity for communities overlying groundwater basins to develop plans for basin sustainability, which is a polite way of saying ‘eliminating overdraft,’” he said. “I hope people really understand what it means, including reduced pumping, and the elimination of unreasonable effects on surface waters, among other things. SGMA does offer real hope that these plans will ultimately eliminate long term overdraft and problems such as land subsidence.”

“I don’t want my somewhat tepid response to this new law to obscure the fact that it’s mere adoption was a monumental accomplishment, given the decades of complete resistance to any regulation of groundwater in any form, including just letting somebody know what you’re doing,” he added.

With respect to other parts of the state’s water rights system, Justice Robie said there are a surprisingly large number of pre-1914 appropriative rights, many of them are fairly substantial, and we didn’t always know as much as we needed to; he noted we know a lot more about post-1914 rights, but still not enough, either. “So it’s understandable that given this hodge-podge of rights, coherent management has been difficult, and until recently, in my opinion, less than successful,” he said.

“Now it’s true that we have Article 2 Section X of our constitution and we have the public trust doctrine which was enunciated in the National Audubon Society case to bring flexibility and the recognition of instream values in water rights administration,” he said, adding that that’s where we are one-up over the rest of the Western states. “They may laugh at us because of our system, but we laugh at them because they don’t adequately take care of instream rights and other environmental values in their water rights system because they don’t have the public trust. They in turn laugh at us and say that makes the rights so obscure, who knows what they are, that we don’t have the certainty that they have, so there’s two sides to that question.”

“But in any event, the public trust has only been a significant factor in a few cases, such as the Mono Lake case and the waste of water in the Imperial Valley, up until now,” he said. “It’s part of a lot of the water board’s decisions, but it isn’t a driving force; it’s an essential element.”

Justice Robie quoted from an article in a Southern California newspaper summarizing why there have been no significant changes in water rights law for a long time: ‘The state’s longest standing water rights holders, especially upstate farmers, but also cities and water agencies, have long resisted even the smallest changes to a system that has benefitted them for a century. As it stands, rights holders can take water from rivers and streams with little oversight and little scrutiny of how much they are taking.’

“This quote illustrates well that until now, the single greatest problem with the administration of water rights, in my opinion, has been uncertainty – that is, significant gaps in our knowledge of what surface and groundwater diverters were in fact doing,” he said. “But as the Bob Dylan song goes, ‘the times, they are a-changing.’”

“So this brings me to what I consider the new normal – what is different now and in going forward from the picture I painted, in these remarks so far?” Justice Robie said. “There’s been a remarkable combination of circumstances, some planned and some thrust on us.”

“First and foremost is the current drought,” he said. “I recently reread a wonderful book for anyone who likes the history of California, Carey McWilliams in 1949 wrote a book called, ‘California: The Great Exception.’ There is a section of that book where he talked about water, and he bemoaned the fact that there was a lack of action over the great drought of 1948, and he particularly noted the terrible land subsidence in the San Joaquin Valley as a result of the drought of 1948. I wasn’t even working in the water business then.”

“I know firsthand what drought means to the state since I did survive the 1976-77 drought and that was the most severe in history until the current one, but that drought was 38 years ago,” he said. “Recognizing the problems of our water rights system at the time, Governor Brown established a commission to review California water rights law to tackle some of the issues that I mentioned today which were active then. A series of significant and innovative solutions were proposed and promptly relegated to the dustbin. No fundamental changes were made in surface and groundwater rights or their administration.”

“Subsequently, little was done to reduce uncertainty because the best way to avoid scrutiny is to not let anybody know what you’re doing,” he continued. “Notwithstanding the inaction as memories of drought quickly faded, since 1977 we were lulled into a new sense of complacency as to problems with our water rights system by innovative water management in the field.”

Justice Robie then gave the reasons why it hasn’t been much of a problem: “We started making more and more water transfers, and a lot of State Water Contractors transferred water they didn’t really need,” he said. “Planned groundwater storage, water banks, and a lot of new surface terminal storage of already developed supplies, and significant water conservation, particularly in urban Southern California.   We created the Delta Watermaster to get a handle on that area, and very careful and management of the state and federal projects.”

“Thus in spite of no new on-streams surface storage, the enormous population growth of our state and increase in irrigated agriculture in the last four decades, and even in the last few years, we got by pretty well, largely avoiding the problem of uncertainty until the drought hit again and brought our folly home,” he said.

“Necessity has always been the mother of invention and I’m really pleased at the significant actions taken in response to this drought, unlike the 1977 drought, first and foremost by the Governor and the State Water Resources Control Board,” he said. “We have emergency drought regulations by the Governor that made all these things take place much more simply. There were statutory changes to bring more certainty to what’s going on out there, and we’ve had significant court decisions outlining and affirming the board’s authority to limit the exercise of rights to what they are legally entitled to. So in my opinion the Board managed the drought so far very well indeed, considering the limitations in the law.”

Justice Robie said there three recent significant Court of Appeal decisions with respect to the authority of the State Water Resources Control Board:

• Young vs. State Water Resources Control Board (2013)
• Light vs. State Water Resources Control Board (2014)
• Millview County Water District vs. State Water Resources Control Board (2014)

“I would encourage you to look at them carefully,” he said. “These opinions make it clear the Board can utilize our constitutional provision and the public trust and has the authority to require reduction or elimination of diversions when water is not available. These cutbacks can be made to protect instream sources, primarily fish. Surprisingly and mainly because nobody was really fighting over things until recently, there were very few legal opinions out there on the basic subject of the administrative authority of the State Water Board. They’d been sued a great deal in their water quality area, and they’d been sued on the water board decisions but those individual ones dealt with little pieces of the action, not the fundamental issues which were resolved at least to me in my mind in these recent decisions from the Courts of Appeal.”

Justice Robie also pointed out there have been statutory changes. “When they first started doing budget trailer bills, I thought, gee this is kind of sneaky, but boy I’m sure glad they have them,” he said, as the crowd chuckled. “Senate Bill 88 adds frequent and more comprehensive measurement and reporting requirements for a substantial number of water rights holders – about 12,000 using 10 acre-feet or more of water. This bill requires annual reporting from riparian holders as well as pre-1914 appropriative rights.”

Justice Robie noted that when he was on the Water Board, they tried to tighten up the reporting requirements, and although they’ve been there, they are pretty loose.

He then quoted Chair of the State Water Board Felicia Marcus’s reaction to the emergency regulations: ‘Knowing where, when, and how much water is being used is essential to managing the system fairly for all.’ “She said this is a common sense move and indeed it is, and thank goodness there is some common sense now,” he said. “Although the reporting and measuring requirements vary with types of users, they represent a significant change and they vary from hourly to monthly. There’s still some more – they could be tweaked and improved, but they are a significant step forward.”

“With these new data – providing people provide it – together with longstanding information as to what the federal and state water projects are doing, the water board will be able to more accurately model and assess the water supply and demand situation to properly manage the system, because it is a system,” he said. “I hope more water right holders will have confidence in the Board’s management when they know the Board really knows what’s going on. They are really the best friend that the water community has because they bring order and reliability and sense to a system which is one of law, after all.”

But even with these changes, enforcement of water rights cutbacks during drought is often frustrated because so many bodies of water, especially the Delta, have water in the stream which is not natural flow, but instead water released from upstream storage, he said. “Historically, water rights only extend to the natural flow of the stream, and in places like the Delta, a claimant looks at the stream and sees water, and just assumes his or her right applies. Not necessarily so.”

Justice Robie said the issue was really brought home to him by a statement by a Delta farmer recently, who was quoted as saying, ‘I have riparian rights. I should be able to get as much water as I need to do whatever I need to do.’

Secondly, there was legislation finally lifting veil of secrecy on well drilling logs, he said. “You recall when the 2009 legislation was made about getting more information about groundwater. The law prohibited people from setting foot on the land to check the wells and there were all sorts of restrictions, but I think we’re finally getting to the point where we can finally find out what’s going on.”

“Then last year, the legislature passed a new statutory procedure for groundwater adjudications and legislation to coordinate the adjudication procedures with SGMA because the common law of groundwater doesn’t take into account environmental considerations,” he said. “Going back to the Antelope Valley lawsuit, the adjudication which was all people competing for the same water, did not have any public interest participation by anybody who you’d have normally in litigation, say for example over the Delta. The parties are just people who claim rights to the basin. If you worried about the effect on fish or worried about other factors, they weren’t there.”

Justice Robie pointed out that the sustainability plans are far broader than groundwater adjudication law, and legislation was passed last year to provide new statutory procedures for groundwater adjudications and to coordinate the new adjudication procedures with SGMA.   “The adjudication law doesn’t change the law of water rights – you’re still going to have 50 or more people in a room fighting over cutting back 50% of their water use, and who is the first one to say, ‘I’ll do it.’ So having a better statutory procedure may cut back adjudications from 15 years to 10 or 12 or 9 maybe, but it’s not going to solve the problem instantly as people thought. But any time a little reform comes, it’s better than none at all.”

“Development of a SGMA plan necessarily requires knowing who is pumping what, and how much is going to have to be reduced in order to reach the level of sustainability,” he said. “So while SGMA may have disguised sustainability as getting back to a safe yield, some day they are going to have to bite the bullet and get there.”

“At this point in time, after watching the water rights scene pretty closely for half a century, I think it’s reasonable to assume that fundamental reform of the crazy quilt water rights system is simply not realistic,” Justice Robie said. “I used to talk about getting rid of riparian rights and doing this and doing that – fundamental reform is not impossible, but I think we’ve shown now that there are realistic changes that can be made and have been made this session to improve the system and to create a new normal where we can actually operate under the system with full knowledge of what we’re doing, so I’m a little more optimistic than perhaps I used to be.”

The Public Policy Institute of California has been doing an excellent job of serious studies of California water law and really recently wrote a report last fall titled, Allocating California’s water: Directions for Reform, he said. “They have some really creative thoughts that don’t change the whole system, but I think make sense.”

“First of all, they recommend bringing all surface water rights under the water rights permitting system,” he said. “Now this would not change the character of these rights; riparian for example would still be riparian rights going back 166 years, but it would give the board a better handle on the system. In the words of the PPIC, ‘this would add certainty and efficiency by bringing all rights under the umbrella of a common coherent administrative system.’ And they suggest also that riparians, while still having the highest priority, would have to demonstrate their land is eligible for riparian status. That’s an interesting question to ask.”

“Secondly, one of their recommendations is to require surface rights holders to choose between riparian and appropriative rights,” he said. “The report comments that this would not change the amount of water these landowners could use; it would simply prevent them from frustrating the administrative system by toggling between rights. Interestingly, I suggested that this be done when I was on the water board in the early1970s but my suggestion didn’t get anywhere. Why should the same water be subject to two different rights?”

Justice Robie noted that the recent Millview case confirmed that you can’t perfect or maintain an appropriative right with diversions that are authorized under a riparian right. “Nevertheless, this statutory change would be a good idea.”

The PPIC report also recommends quantifying groundwater rights in priority basins so that you know the number that you have to reduce from, he said. “One of the big issues in the Antelope Valley case was people didn’t trust each other’s estimates of their rights … One of the parties didn’t trust some of the farmers so they had flyovers of remote sensing people to just see if they were lying in their papers, so here you have this kind of nonsense in an adjudication. It would be lovely if somebody just sort of put together a map of how many water rights you have and then let the sustainability planning process slug out how you reduce them down to achieve sustainability.”

The last recommendation from the PPIC report is the development of an authoritative water accounting system. “They recognize the changes in the law, but for example suggested having key state agencies develop a common water accounting framework, and this makes sense.”

He noted that the PPIC makes other recommendations regarding environmental needs of river systems and removing barriers to water transfers, among other things, but he chose to focus his remarks only on the recommendations to the water right system.

“I can’t help but telling one more story,” he said. “In 1978, the Sacramento Union had gotten the bug about when is the drought over, and every day that it rained in the spring of 1978, they called me up and asked me if the drought was over. And I always said no, because my strategy was never let up, until we were literally drowning, and the paper would run a picture on page 1 when it rained and saying the Director says it’s not over yet. But I stuck to my guns. The information is that we’re getting more water but the drought is not yet over. And I’m so hopeful that this drought is the wake up call that the 1977 drought was not, because this one has the potential of really changing the landscape.”

“Some congressmen from the San Joaquin Valley believe that just reducing environmental protections in the Delta will get people all the water they need without tinkering with our flawed water rights system,” he said. “I don’t agree, but I was amused by the Governor in his state of the state address, when he said, ‘Pitting fish against farmer misses the point and grossly distorts reality.’ And he was right on that one.”

“Now they are all pointing their fingers at the Endangered Species Act as being the real trouble maker, but two years before it was enacted by Congress, the State Water Board had already set Delta water quality standards for the state and federal projects. State law protections are still there and they will always be there. And with California vs. US, the feds will comply with them, so just taking away the ESA even is not going to solve the problem people think it would.”

“I was an optimist when I joined the water board in 1969; I thought that water rights could be reformed and I kept trying but over the years I’ve been frustrated greatly by the fact that change has come so slowly,” Justice Robie said. “But it encourages me that today, there are far more individuals and organizations dedicated to making the system work better. This symposium is a good example. It’s been going on for a number of years and we have a room full of bright young engineers, lawyers, and environmentalists, and the future of our system is in the hands of you guys, and I have reason to think that things will indeed be better.”

“Thank you.”

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