PLANNING & CONSERVATION LEAGUE: Updating California Water Laws in the Face of Droughts/Climate Change

California’s current system of water laws seems ill-equipped to respond to long-term droughts and climate change.  One million Californians do not have safe drinking water, the state’s aquatic ecosystems are in crisis, and water users are confronting increasingly scarce and unpredictable water supplies. 

So over 18 months ago, the Planning and Conservation League assembled a group of California water law and policy experts to review and make recommendations on how California water law can be updated to take into account the unprecedented conditions facing 21st century California.  

On Thursday, February 3rd, those experts released their recommendations for updating California water law to address drought and climate change.  The release coincided with a panel discussion during the Planning and Conservation League’s Annual Assembly.

Here’s what they had to say.

Overview of the report

Jonas Minton, Senior Water Policy Advisor for the Planning and Conservation League (PCL), began by noting that 18 months ago, the Planning and Conservation League convened some of the state’s leading water law and policy experts to look at California water rights, four decades after the Governor’s Commission last reviewed California water rights law.

“Their work started as an academic exercise,” said Mr. Minton.  “No one thought their recommendations would have any realistic chance of being enacted, or frankly even listened to.  But then the skies dried up, the April meager snowpack suddenly disappeared, and all of a sudden their work became much more welcomed.”

Mr. Minton pointed out that the Planning and Conservation League’s role was limited to bringing the experts together and providing them logistical support.  “PCL had absolutely no vote on the recommendations they developed.  These are their unanimous recommendations, not PCL’s.”

The panelists

Clifford Lee, one of the co-authors of the report, former Deputy Attorney General representing the State Water Board, the Department of Water Resources, and other state agencies for over 40 years until he recently retired.

Jennifer Harder, one of the co-authors of the report, a professor of law at McGeorge; her research focuses on integrating classic water rights principles into contemporary regulatory systems, water and growth, and water justice issues.

Dennis O’Connor, Chief Consultant to the California State Senate Committee on Natural Resources and Water; he has been involved with key pieces of water legislation, including the 2007 package of flood legislation, the 2009 water legislation, the Sustainable Groundwater Management Act SGMA, and most recently Making conservation in California way of life.

JENNIFER HARDER: Implementing the Human Right to Water

One of the group’s top priorities was to address the continuing water crisis in California’s disadvantaged communities and the one million Californians that lack safe drinking water.  Those who rely on domestic wells for drinking water rather than a municipal supply are particularly vulnerable; 3500 of these domestic wells went dry during the last drought.

Many of these failing domestic wells are located in economically disadvantaged communities that are often occupied by historically underserved minority populations that have been subjected to explicit and implicit racism in the delivery of services, including water, noted Ms. Harder.  In addition, the supply crisis in these communities is heightened by water quality crises, contamination from agriculture and industry, and other issues.

In the last ten years, the state has taken actions to address this crisis, including the passage of the Human Right to Water act in 2012, which provides that every Californian has a right to safe, reliable, affordable water.  The state has followed the Human Right to Water Act with other measures, such as funding to support improved water service to disadvantaged communities, improved policies in state regulatory agencies, and others.

“These steps have been a very good start,” said Ms. Harder.  “Our group very much supported these steps.  But we believed that much more is needed to address this crisis, and so we have focused on three reforms with the understanding that additional steps should be taken.”

Those recommendations are:

• • One member of the State Water Resources Control Board and each regional board be identified as an expert on the issue of environmental justice, and specifically the issue of water for disadvantaged communities.  This parallels some of the ways in which the board members are already structured with identified expertise.  Add this new expertise.
  • The State Water Board and the regional boards explore funding sources for environmental, NGO, and tribal participation in agency proceedings.  The group suggests the Boards explore the model used at the California Public Utility Commission for intervenor compensation, knowing that adjustments are needed to be responsive to the board contexts.
  • Third, the group recommends that the state affirmatively implement the Human Right to Water Law by requiring agencies that manage groundwater to mitigate for adverse impacts on domestic wells. 

Ms. Harder then focused on this last recommendation.  

In 2014, California enacted the Sustainable Groundwater Management Act (or SGMA) to address the chronic overpumping of key groundwater basins.  SGMA requires the formation of local agencies called Groundwater Sustainability Agencies who are required to adopt Groundwater Sustainability Plans and achieve sustainability in those basins within 20 years of adoption.  They also have to make interim progress toward this goal.

Those groundwater basins classified as critically overdrafted were required to submit their groundwater sustainability plans to the Department of Water Resources in January of 2020.  The Department has reviewed those plans and has released assessments that indicate the plans need more work on drinking water and domestic well issues.

“This in part supports the direction we have gone with this recommendation,” said Ms. Harder.  “Our group believed very firmly that California water law should include standards that expressly and unambiguously protect disadvantaged and historically underserved communities, correcting the systemic inequities in those communities.”

The recommendation is to require groundwater sustainability agencies to do three things:

• • First, to expressly determine whether groundwater extractions impact domestic wells.
  • Second, mitigate those impacts by repairing or deepening wells or facilitating connections to reliable water sources.
  • Third, ensure that mitigation does not impose unreasonable financial burdens on domestic wells. This may require compensation for costs, such as increased energy costs, alternative supplies, and others.

“The group believed that achieving groundwater sustainability is a necessary and commendable goal, but we also believed that the state must not place the burden of achieving that goal on its most vulnerable individuals and communities,” said Ms. Harder.

CLIFFORD LEE: Updating water rights administration to address drought and climate change

Clifford Lee then discussed the recommendations for updating water rights administration to address drought and climate change.  There are five recommendations; he focused on three:

• • Incorporating climate change into the water right permitting process;
  • Providing for first steps for real-time monitoring and reporting of the water right diversions in use; and
  • Improving the surface water rights verification of so-called pre-1914 water rights.

Incorporating climate change into the water right permitting process

Ever since the adoption of the Water Commission Act of 1913, the State Water Board has been required to determine that there is unappropriated water in the watershed in which the water project is to be developed upon before it issues water right permits for the diversion and use of surface water. 

Mr. Lee explained how this is generally done:  The water board first determines the unimpaired flow within the watershed.  Next, the water board determines who the senior water right users in the system diverting and using water are.  Then the water board determines how much water must be left in the stream for public interest values, such as fish and wildlife or salinity control.  Lastly, the water board takes the latter two factors, subtracts them from the first factor, the amount of unimpaired flow, and determines any surplus.  Roughly speaking, this is how unappropriated water is determined.

“This is particularly important because if you’re going to develop a new water storage project within a watershed, there has to be water that’s unappropriated for your project,” said Mr. Lee.  “Now, remarkably, even though there is this requirement of determining whether there is unappropriated water in a stream before a new water storage project can be built, neither the water code nor the state board regulations have provided any guidance as to the methods to be used to determine whether there’s unappropriated water.”

“The historical practice has been that the Water Board and the water right applicant have relied on backward-looking historical water measurements within the watershed – mostly information from water gauges or extrapolated from that data,” he continued.  “They have used that to estimate how much unimpaired streamflow there is in the stream.  So, a water project may look at a 43-year historical cycle and say, what’s the average of those 43 years.”

“Now, one of the things that we know that’s absolutely true is that past reliance upon backward-looking flow estimates based upon historical data to determine watershed streamflow is no longer defensible given climate change,” he said.  “Climate change will result in less precipitation as snow shifts peak runoff from historical patterns to earlier portions of the year, shorten the precipitation season, and increase the intensity and frequency of drought.  As a result, there simply will be less water in the future.”

“My view is that to rely now on historical data to determine future flow estimates in a watershed is to embrace the ‘Waiting for Godot’ fallacy.  Now, as you all know, from the Samuel Beckett play, Godot never arrives.  And that is the problem with using historical data to determine future flow; the flow is not going to arrive.”

Understanding this principle, the group recommends that the water board, for the first time, develop and prepare regulations that set forth the methods and practices for determining unappropriated water, something Mr. Lee noted has never done.  Those regulations should include the requirement that any water availability analysis be based on models that anticipate what future flows will be in the watershed, given the effects of climate change, and not to rely exclusively on historical data.

“We will likely see when those regulations are developed, and best available science is applied to determine water availability, is less flow within a stream system than what the historical data would provide,” said Mr. Lee.  “This is an important way to incorporate climate change into the water right permitting process.  It can also be used in managing existing water rights that have already been issued.”

Providing for first steps for real-time monitoring and reporting of the water right diversions in use

Here in California, the land of high technology, the state lacks the ability on a real-time basis to determine who is diverting water from surface water sources, when such diversions are occurring, and in what amounts.  This deficiency hampers the state’s ability to manage surface water, particularly in times of droughts, Mr. Lee said.

Generally, shortages are allocated through a sharing process, except for riparian water rights.  The rule of appropriative rights is that senior diverters have the priority to divert over junior diverters, or ‘first in time, first in right.’ 

“If senior diverters take more water than their allocated share water or take water outside of their authorized season of diversion, the resulting reduction in flow may force junior diverters to reduce their diversions earlier than the priority rule would require and may reduce flow for fish and wildlife and other public interest uses,” he said.  “So it’s extremely important to get a handle on a real-time basis during drought, who’s taking how much water, when they’re taking it, and where they’re placing it to beneficial use.”

Existing law mandates that surface water diverters report their diversion data annually and only for the prior year.  “So basically, during the drought, the state is flying blind – we do not know who is taking water.  Therefore, this suggests that we should move where possible to a real-time management process.”

The group thought that the most prudent approach would be to require the State Water Board set up a pilot project in at least two watersheds to determine the technologies and methods to provide real-time reporting on diversion and use of water, and then prepare a report as to what extent those technologies and methods could be expanded statewide.

So why not immediately apply it throughout the entire state?  “The group’s judgment was, we’re not quite there yet,” said Mr. Lee.  “It would be valuable, where we have never had real-time reporting before, to do test projects first to see what works and what doesn’t work.  And then, based on that information, go forward with a broader project.  This assignment would be given to the State Water Board with the necessary funding to complete it.”

Improving the surface water rights verification of so-called pre-1914 water rights

California has a patchwork system of surface water rights that is unlike any other system in the Western states; English common law, riparian rights, pre-1914 appropriative rights from the mining days, and a statutory system adopted in 1913 and effective in 1914, which requires a permit or license from the State Water Resources Control Board to appropriate water.  Again, this is unique among the western states, Mr. Lee noted.

He pointed out that Oregon has long since have recognized that their pre-code water rights must be melded into their permit and certificate system.  The state of Washington simply abolished unused riparian water rights by statute, which the Washington Supreme Court upheld.  Colorado never recognized riparian water rights, and they simply have an appropriative water rights system.

“However, in California, we have had a patchwork of types of water rights which has left considerable confusion,” said Mr. Lee.  “Since these pre-1914 appropriative and riparian rights are not rights to which the water board issues permits and licenses, their scope is unclear.  So the group has recommended that the board be granted the authority to conduct investigations to determine the verification of these water rights and to see whether they, in fact, have a legal basis in law.”

He noted that in many Western states, this issue is addressed by stream adjudications; however, stream adjudications seem to work on small streams but don’t seem to work on large streams in any practical fashion.  He pointed out that the state of Oregon started a stream adjudication effort on the Klamath River in 1976, and it’s still not complete.

“So while adjudications have importance, they cannot be an effective real-time water management tool,” he said.  “So this recommendation gives the board the authority to conduct investigations and determine whether an individual diverter is diverting on a legitimate basis and right and in doing so, bring more unity and clarification into our water rights system.”

“I would like to say that this recommendation brings California into the 21st century on water resource management, but actually, in comparison to the other 20 western states, it just brings California into the 20th century.  So we have asked that we move forward on something that most of the other western states have already adopted and update our laws to better reflect a more unified water rights system.”

The other two recommendations in this category are that the Board be given the power to initiate statutory adjudications and that the board be given the authority to issue interim relief orders is when it conducts a water rights enforcement proceeding.

JENNIFER HARDER: Addressing the extinction crisis facing California’s native fisheries

California’s fish populations are clearly in crisis; out of 125 native fish species, seven species are already extinct, and 100 are in decline.  The group has two recommendations to address this crisis but acknowledges many other approaches could and probably should be taken.

The first recommendation is for the legislature to adopt deadlines for completing and implementing the Bay-Delta Water Quality Control Plan.  Ms. Harder noted that California’s Porter-Cologne Water Quality Control Act requires the adoption of plans to achieve desired water quality conditions in California’s river systems called water quality control plans.  One function of a water quality control plan is to adopt flow objectives to, in part, protect fish populations.

The State Water Board has previously adopted two water quality control plans for the Delta that included flow objectives for fish in 1978 and 1995.  The state and federal laws require regular review and updates of these plans.  However, for various reasons, both understandable and challenging, the state board has not comprehensively revised these plans’ fish protections since 1995.

“The Delta Water Quality Control Plan, in particular, is at the center of California state water policy,” said Ms. Harder.  “Our group all agreed that the lack of a plan has had an outsized negative influence on California’s water resources management.”

The Board itself has recognized the need to revise the Bay-Delta Water Quality Control Plan and adopted a framework for doing so in 2018.  That framework established two phases for the update, with phase one focusing on the lower San Joaquin River and tributaries in the south Delta, and phase two focusing on the Sacramento River and tributaries and Delta outflow, among other things.

In December 2018, the board adopted a phase one decision that revised the fishery flow objectives for the San Joaquin River and tributaries.  Designed as comprehensive instream flow standards, these objectives require a specified percentage of unimpaired flow to be left instream to support fish populations.

The phase one decision encouraged stakeholders to collaborate to determine how to implement the instream flow requirements on specific stream systems, bringing their local expertise and management expertise to bear, provided that the agreements fulfilled the legal obligations and were scientifically defensible.  These became known as the voluntary agreement process or VAs.

The Newsom administration engaged in the voluntary agreement process for phase one for almost three years until last October, when it concluded that the discussions had not produced defensible objectives, and directed the State Water Board to implement the phase one decision adopted in 2018.  Last December, the State Board staff proposed that the Board seek to complete the phase one implementation by fall of 2023.

“Our group’s view was that in light of the fish crisis in California and the state’s clear authority to address that crisis, the failure to get revised fishery flow objectives across the finish line for whatever reason is an unacceptable public policy failure,” said Ms. Harder.  “To address this issue, the group recommended was to require by a date certain that the state board implement phase one, and by a date certain to adopt phase two update.”

“So specifically, the recommendation is that the State Water Board adopt a phase two update by December 31st, 2023 that addresses the Sacramento River and Delta outflow, and that the state board implement the phase one update adopted in 2018 by December 31st, 2023, which addresses the San Joaquin River and tributaries, South Delta, and other resources,” she said.  “These recommendations integrate the state board staff’s own timing estimates which set that date they were aiming at for the end of 2023.”

“This is, of course, ambitious,” she said.  “But the group sensed that the fish don’t have time to wait longer for further delays.  These recommendations do not focus on the content of the water quality control plan, but only that the water quality control plan be adopted and implemented.  The content of the plan is left to the State Water Board’s expert discretion based on the science available to it.” 

“In addition to these deadlines, the group also recommended a mechanism to incentivize administrative action and also incentivize the engagement of stakeholders on that faster timeline that we think is necessary,” she said.  “The mechanism that we propose would preclude the board from approving any new water rights or extending time on water rights, where the result would be new or increased diversions to surface storage from the Sacramento San Joaquin River watershed.  This seems appropriate given that these fish flow objectives would be necessary to protect fish populations in light of any such approvals.”

The second recommendation for fisheries is that the state amend Section 5937 of the Fish and Game Code to require consideration of temperature as well as flow.

The group recognized that one of the substantial drivers in declining California’s fish populations is temperature.  One example is the impact of temperatures on the Sacramento River winter-run chinook salmon, which are at near-term risk of extinction, in part due to high temperatures.  In fact, during the recent drought 2014-2015, there was a massive loss of a year class of wild winter-run Chinook salmon due to temperatures.  And the state is predicting future high temperatures that could potentially cause the complete loss of California’s native salmon populations.

Section 5937 of the Fish and Game Code currently requires reservoirs to release sufficient water to keep downstream fish in good condition. 

“We know that science establishes without a doubt that keeping fish alive, much less in good condition, requires not only a specific volume of water but also that water be of an acceptable temperature,” said Ms. Harder.  “So in recognition of this science, and in recognition of the status of these fish populations, the group unanimously recommended that section 5937 be amended to require that dams release or reservoirs release water of sufficient temperature, as well as sufficient flow volumes.”

DENNIS O’CONNOR: Implementing the report’s recommendations

Virtually all of the recommendations will require legislative action, either through a budget process or by enacting bills.  Next, Dennis O’Connor, the person who would work with his committee members to interpret and explain these recommendations, gave his thoughts.

Mr. O’Connor began with a few disclaimers:

• The views he will express are his own and not necessarily of the committee chair, Senator Stern, or any of the members of the committee past, present, or future.
• While he may say positive things about some of these proposals, be assured that should any of these proposals end up being bills before our committee, his analysis will be critical, thorough, and accurately reflect the perspectives of both proponents and opponents.
• And in anticipation of the release of these recommendations, he has submitted language to turn many of these proposals into legislative bills; this should not be construed to be an endorsement of the proposals by himself or the committees of the proposals.  He noted they frequently submit language as a courtesy in anticipation that members may want to have a bill on some subject or another.

He pointed out that passing bills regarding water and water rights is understandably difficult.  “Water rights are property rights, and people are understandably resistant to any proposal that appears to them to potentially impair that right,” he said.  “This is especially true as water supplies become more and more scarce.  Consequently, passing a bill on this sort of stuff requires an author who is reasonably knowledgeable in water rights, has credibility with all the various water interest groups, and is adept at moving bills through the legislative process.  And even then, it may take two or three runs at a bill before they’re successful.”

Mr. O’Connor noted that Senator Pavley twice tried to pass a policy bill to make well logs public, which are just technical reports on the well’s construction.  However, it proved so challenging that ultimately, she resorted to getting it into a budget trailer bill to get it passed.  He also noted that Senator Pavley did try to get some of these proposals included in the 2009 water package but was ultimately unsuccessful.

“One recommendation that Cliff and Jennifer didn’t talk about is their recommendation that the State Water Board and the Department of Fish and Wildlife need to be provided sufficient funding to carry out their existing and new responsibilities,” Mr. O’Connor said.  “This is really, really important.  Traditionally, water rights activities have been funded through fees on water rights holders, with the presumption that enforcement of those laws benefited the water rights holders the most.  Water rights holders understandably balk when asked to fund things that they don’t see as benefiting them.”

“Such things as the Water Board’s public trust responsibilities fit that category,” he continued.  “Protection of public trust resources benefits all Californians.  One could reasonably argue that all Californians ought to pay for that through the general fund.”

“A similar argument applies to the Department of Fish and Wildlife,” Mr. O’Connor continued.  “Hunting and fishing fees support much of the Department, and yet they too have public trust responsibilities.  Over the years, the challenge has been getting General Fund monies to resources issues.  We get some money during periods of surplus, but as soon as we hit one of our periodic downturns, those funds are usually the first to get cut out.”

“If we pass a law but don’t fund its implementation or enforcement, it is often as if we never passed the bill in the first place,” he said.

The second recommendation was funding sources for NGO and tribal participation in the state board regional proceedings.  For the water quality side, this could be done with the policy bill as language exists in the Water Code for the Water Board and the regional boards to fund different things for their proceedings, he noted.  However, it would come out of a fund continuously appropriated to the water board and would trigger a two-thirds vote threshold.  So there may need to be some technical work on that.

Expanding it to water rights processes would be better done through the budget process.  Finding the funding source would be challenging, and the water rights fund probably isn’t the best source.  Mr. O’Connor reiterated that getting general fund money for these sorts of things has been a real challenge.  How are we going to fund it all?

The third recommendation is that at least one member of the State Board and the regional boards be qualified in environmental justice.  Mr. O’Connor noted that the State Board does have such a member – Laurel Firestone.  “I think there will be some discussion as to whether or not this is actually necessary, insofar as a governor already can and has demonstrated that they can do this, so this might be a heavier lift than one might think just by looking at it.”

As for the recommendation to implement the Human Right to Water through groundwater sustainability agencies, Mr. O’Connor agreed that it’s a real concern.  “It’s not clear whether or not legislation is necessary because we don’t know exactly how DWR is going to deal with the various groundwater sustainability plans that it found to be incomplete.  They did raise the issues that in many of these plans, they didn’t see the attention to drinking water that one might have expected.  But we don’t know what the magic threshold is for them when the various groundwater sustainability agencies update their plans to try and comply, what is considered good enough for the Department.”

It’s also not clear that this would address another challenge with domestic wells, which is interference by the large agricultural wells adjacent to domestic wells.  “I’ve had a couple of conversations with the Legislative Counsel about this, and it’s going to be technically a bit of work to get this done.  For example, we don’t have a definition of domestic wells in SGMA.  And when we talk about not having an unreasonable financial burden, what’s the threshold of that?  And who gets to decide questions about compensation and such?”

He also noted that the recommendation is to do this immediately, but the updates for the critically overdrafted basins are due in 2025, and many of those folks are currently scrambling to try and get their existing plans up to snuff.  “So, what do we have them do on top of what they’re doing?  Immediately revise their plans?  Do we have this as a requirement for the 2025 Update?  Those are probably going to be questions that the legislature is going to want to explore.”

The fifth recommendation regarding statutory adjudication proceedings was tried as part of the 2009 water package.  “We had a water rights bill in that package that included a number of these different things.  And, for one reason or another, reasons being somewhat murky, and I was in the middle of the discussions, and I’m still not exactly clear why, but at the end of the day, that bill did not make it through.  So, on the one hand, we have pretty well-vetted language on what to do, but it’s not clear what the politics were then that caused it to fail, and how those politics may or may not have changed over time.”

On the recommendation regarding improving surface water rights verification, Mr. O’Connor noted that this was also recommended in the 2009 Delta Vision Committee’s implementation plan to Governor Schwarzenegger.  “We also gave similar powers to the Delta Watermaster as part of that 2009 package because the water exporters thought that the Delta diverters were taking water that they weren’t entitled to, so we gave those authorities to the Delta Watermaster.  Come to find out that the vast majority of those asserting water rights, either pre-14, or riparian rights, in fact, did have those rights, or at least were able to satisfy the Delta Watermaster’s concerns.”

As for interim relief, Mr. O’Connor noted that this was also part of the Delta Vision Committee’s recommendations, but this one didn’t make it into the final 2009 bill package.  “Let’s just say that water rights holders really had a difficult time seeing the benefit to them for this, and so there may need to be a fair amount of education if this is something that somebody wants to pursue,” he said.

Regarding real-time monitoring of diversions and pilot projects, Mr. O’Connor said that money would be the issue on this one.  However, he pointed out that this may have some value in water rights enforcement.

“There is Term 91, which is a standard water rights term that allows the State Board to tell folks that they can’t divert during periods when Shasta and Oroville are releasing water for Delta water quality control purposes,” he said.  “There have been occasions where there have been tests where they release water out of one dam or the other, and there’s no evidence of the water ever making it to the Delta.  So something like this may be helpful in water rights enforcement, besides just getting a good handle on what’s going on with the water use, the hydrology, and such.”

Mr. O’Connor agreed that setting up practices and methods for a water availability analysis is clearly an important issue.  “It looks at this time to me to be a budget bill as opposed to a policy bill.  But it would be really helpful to have some more detail on exactly the characteristics of what we’re looking for.  Are we talking about modeling?  What is it that we’re looking for?  This might be one of those situations where it would be a good idea to set up an expert panel to explore how one might go about doing such things and then use that as the basis for granting the State Board Authority or something like that.  It’s an interesting idea.  I’m just not exactly sure what all would constitute such a proposal.”

Regarding the deadlines for completing the Sacramento San Joaquin Delta Plan update, he noted that it was 30 years ago when the process collapsed, which led to the Delta Accord and Cal Fed,  which was all designed to try and get to similar sorts of things.

“Certainly, one could argue that it’s time,” said Mr. O’Connor.  “That’s certainly a point that the Legislative Analyst raised just this last week in their budget analysis for the State Water Resources Control Board.  I will also note that the history of the Delta is a history of missing critical deadlines, so I’m not sure that this would actually work.  But on the other hand, I don’t think anything else has worked so far.  So why not give this a shot?”

Finally, regarding the Fish and Game Code recommendation to be modified to consider temperature, he agreed that it makes sense from a scientific perspective.  “My guess is that those who own and operate dams are going to be less in love with this proposal than others, but that’s why we have a legislative and deliberative process.”

Jonas Minton pointed out that no one entered this with their eyes shut; the issues that Dennis O’Connor has raised are known to the participants, and Mr. O’Connor will carry out his responsibilities to objectively review any and all proposals.  

“He has noted that several of them have been put forth in prior times,” said Mr. Minton.  “One thing the group noted is that we are not living in prior times.  With this drought/climate change, we’re seeing the imposition of incredible burdens on agencies such as the State Water Board to try and figure out how to fairly administer public trust responsibilities during these shortage times and when species are at or even maybe one past extinction.  So while the group is mindful of the challenges in the history, that has not deterred them from putting forth what they think are good recommendations.”

QUESTION & ANSWERS

QUESTION: Irrespective of climate change, we’ve seen estimates of water rights exceeding availability or over-allocated by five times or even eight times.  Do you have any comments on the existing overallocation?

“When you hear statements about overallocation, it’s important to understand some background about California water when evaluating those statements,” said Ms. Harder.  “I am sure there is some degree of over-allocation.  I am not a scientist, I have not run the models, and I don’t know the numbers.  But you have to think about a few realities.  One of the realities is that our water rights system is based on a concept of seniority, where you have certain water users who have the first right to take water and other water users who are junior to them.”

“The California water priority system was established in order to fulfill the command of the California Constitution, which establishes our fundamental water policy in the state, and that is to use the waters of our state to the fullest extent possible under a principle of reasonable and beneficial use.  This principle was established in recognition of the fact that California is a state of extremes, it always has been, and our water principles have been structured to reflect the reality of droughts and floods in California.”

“The California Constitution provides that we must use all of our water reasonably and beneficially for maximum beneficial use in order to support those social values – the social good that comes out of using water,” continued Ms. Harder.  “So the water rights system is responsive to this.  It says in high water years, more people can take water than in water-short years.”

“When we talk about overallocation, it’s important to understand where that analysis is establishing its locus of attention.  Is the analysis talking about those water-short years, or is it talking about what we might call normal water years?  Or is it talking about those high water years?  The water rights are established so that most people who can use water reasonably can take it in high water years.  By virtue of the definition of their water rights, they’re supposed to cut back in water-short years.  So that is one caveat.”

“The other caveat is that in the reality of our physical system for using water, water is used many times as it runs through the system; water is diverted, it’s placed back into the stream, the return flow is then used again,” continued Ms. Harder.  “I don’t know the extent to which the studies that identify numbers for overallocation take into account this use of return flow, which itself is reflective of the constitutional standard.  So I think that there is some overallocation, but I would also want to integrate some of these nuances in understanding the degree of over allocation.”

Clifford Lee agreed with Ms. Harder.  He also noted that in the priority system, everyone that holds appropriative rights recognizes that if there isn’t any water in the system and you’re a junior, you get cut off; the system accommodates over allocation.  “Obviously, we don’t want to add to that problem by issuing more permits and licenses in overallocated streams, so that’s a policy issue that we have to consider.  But in and of itself over allocation is not something that the current system doesn’t have mechanisms to address.”

Dennis O’Connor pointed out that not all water rights are consumptive rights.  “So if you have a right to store, the water is still there, it’s still available, you’re just changing the time period at which it is available to subsequently divert.  And so depending on how whoever does the analysis does it, they could easily be including non-consumptive uses in their analysis, and that can skew the analysis as well.”

QUESTION: Do you envision the fishing game code section 5937 recommendation regarding temperature as applying to federal dams as well, and how would that work?

“We have two decisions from the federal court, the Ninth Circuit Court of Appeal, which stands for the proposition that section 5937 of the Fish and Game Code is a state law relating to the control, appropriation, use, and distribution of water; that’s a technical term that is contained within section eight of the federal Reclamation Act,” said Mr. Lee.  “What section eight of the federal Reclamation Act says is that the Secretary of Interior in the adoption and management of federal reclamation projects has to comply with state law relating to the control, appropriation, use, or distribution of water.”

“We can have two Ninth Circuit Court of Appeal decisions that say section 5937 is included within state law relating to the control, appropriation, use, and distribution of water.  So I would say that this amendment would not alter that determination since flow and water temperature relate to the control, appropriation, use, or distribution of water.  So it’d be my judgment that facially, the statute would not be excluded from applying to federal projects.”

“Now, I want to distinguish facially from ‘as applied,’” said Mr. Lee.  “The US Supreme Court decision in California versus the US held that state law applies to federal projects unless state law is directly inconsistent with a clear congressional directive.  So the question then becomes whether the application of Section 5937 in any particular instance violates that principle in the US Supreme Court, California versus the US.  And that would depend on the facts and circumstances of the individual project.”

QUESTION: Would you please address the inherent racism of first in time, first in right?  When those early rights were established, no one but white men could claim them.

“From my perspective, and I can’t speak for anybody else in the group but myself, but that is something we need to be thinking about,” said Ms. Harder.  “One of the issues we’re faced with now is trying to look comprehensively at our systems to address that past issue.  And that is the impetus behind some of our recommendations related to protecting those disadvantaged communities.”

“I would say that in many instances, there are multiple factors that are contributing to the lack of water supply for disadvantaged communities, and water rights is one of those factors,” she continued.  “There are other factors that have also contributed. … I think there is an argument on many of the recommendations, many places where current law might address some of these problems.  I think there’s a good argument for those.  And we talked about some of those in our group.  But, at the same time, because of issues like past systemic racism, I think it’s important that we be clear and unambiguous and establish a standard that cannot be diminished due to the vagaries of politics or regulatory discretion on some of these most important values.  So on those matters that are responsive to systemic racism.  So I would say that our report is focused on making those fixes with the understanding that there’s more work to do.”

“We’ve taken the first stab at this with regard to Section 106.5 of the water code and the embrace of the Human Right to Water,” said Mr. Lee.  “’First in time, first in right’ is a component of the California water rights system, but it is not an exclusive component.  We have the constitutional requirement for reasonable use, which allows even senior water rights users to be subject to analysis as to whether their use is reasonable, and reasonable use by the California Supreme Court has in fact changed over time, depending on the facts and circumstances.”

“If you meld reasonable use with a greater implementation of the human right to water, I think you can ameliorate some of the issues that are raised here,” continued Mr. Lee.  “However, I would say this is an area that requires considerable further exploration, and it’s something that fruitful conversation can be developed in the future.  I don’t think our proposal to further implement the Human Right to Water and groundwater is the last word on this; many other things can be developed and put in play.  So I think this is an area for further exploration.”

QUESTION: Did you consider the rights of rivers or wetlands?

“I’m not exactly sure what that means,” said Mr. Lee.  “We have a situation in California where water rights are granted to people who divert and use water.  And based on two fairly old California Court of Appeal decisions, California water rights law does not allow you to grant water rights to keep water instream.  There has to be a physical capture of some sort of the water.”

“Now, the 1978 Water Rights Review Commission recommended that water rights be modified in some aspects to allow rights for instream use,” continued Mr. Lee.  “That is worth consideration but was not included in our recommendations.  And again, I’m just speaking personally for myself and not for the group.  But to allow water rights for instream use when a considerable number of our streams are over appropriated already, to my personal view, doesn’t really [help] the problem.  If you have a watershed where there is almost no unappropriated water left, giving that right to instream use doesn’t help instream use.”

“It would certainly be better to use what lawyers call the police power through either reasonable use or the public trust doctrine to ensure that existing users dedicate a portion of their use to the protection of public trust values, such as wetlands or rivers,” said Mr. Lee.  “I also think there may be constitutional reasons why this may be a better and more defensible legal strategy.  But again, I’m just speaking for myself, and I understand that the alternate perspective has considerable support in many areas.”

Jennifer Harder agreed with Clifford Lee.  “I think the rights of rivers is an interesting area that’s growing in the academic conversations.  I have more questions than I have recommendations about the rights of rivers at this point.  And one of those questions focuses on the important question of who gets to speak for the rivers?  And how does that voice integrate with other voices in the process?”

“I also think Cliff has an excellent point about the state of our rivers right now and the state of allocation and the priority or seniority, if you will, regarding any right given to rivers, and that we maybe should focus on our existing mechanisms under constitutional, statutory, and public trust principles to look for water for instream flow,” said Ms. Harder.  “California’s water necessarily has to serve multiple functions and multiple needs, many of which are critical: drinking water supply, water for irrigation, and the indigenous communities rely on this water.  Which of these voices is prioritized in this discussion about rivers?  Science certainly plays a role, but science is uncertain and contains inherent policy choices.  So again, for me, I have questions about the institutional framework and the decision-making process structure for that kind of a right.”

QUESTION: Where does this go from here?  It’s a good report with good recommendations, but they’re not self-actualizing.  What is the plan for moving these forward?

Jonas Minton noted that the distinguished water law and policy experts participating in this report did not sign on to become PCL lobbyists, and in fact, it’s not a PCL report.  But there are activities underway, some of which they are involved in, that may advance it.

“For my part, I’ve largely got to defer to others on the implementation,” said Ms. Harder.  “I’m happy to continue lending for what it’s worth some of my background knowledge to these discussions were appropriate.  But on the details, I defer to folks like Dennis, who know how to get this done.”

Clifford Lee also said he would stick in his lane as someone with some experience in water rights law and leave the other aspects to people he feels more qualified to work in that area.

Mr. Minton noted that Clifford and Jennifer have volunteered to provide technical information to parties.  Mr. Lee has been playing an explanatory role, which is very important to have the information out there.  And some participants may be writing an opinion piece that will run shortly.

“As for PCL, we are an advocacy organization, and this is not our report,” said Mr. Minton.  “But we do agree with its recommendations, though, and part of our advocacy will be working with stakeholders, with legislative staff, and with legislators to advance these, recognizing that along the way, no matter how carefully these group members were able to craft recommendations, there are amendments that seasoned legislative staff is going to detect and identify some things that need further addressing.  So we’re going to be sticking with that and looking to work with a broad range of a diverse range of stakeholders to move as many of these forward as possible.”

“Rome wasn’t built in a day, and big water legislation is frequently not passed, even in one year or one session.  So we’re in it for the long haul on this, and we’re going to appreciate the contributions of others as you see how these fit into your agendas.”

Closing remarks

Jonas Minton then asked the panelists for their closing remarks.

“We touched on three important areas: water justice, water rights management, climate change and drought, and then the fishery extinction,” said Clifford Lee.  “I’ll be the first to admit, I don’t pretend to think that our recommendations solve all these problems, but they take a stab at them.  They are the first step.  And I would urge us to think creatively about what the 21st century brings to water resource management, given climate change and other factors, and that this be part of a conversation, not an end game.  Because we need more deliberative thought on what our system of water allocation looks like as we look at our new challenges.”

Jennifer Harder echoed the comments and underscored that there will be resistance from various sides to some of these recommendations.  “I hope that the folks who are on any given side of these recommendations can come together around the understanding that we are in a time of crisis.  We have a climate crisis, we have a wildfire crisis, and we have droughts intensifying over time.  The greatest business asset to water users is the health of our water systems.  And if we can all think about supporting that asset and looking ahead to the future in a way that connects to the common good, maybe we can get some things done that we haven’t done before.  So I hope you think creatively and be brave.”

“I’m looking forward to seeing what comes across my desk and being able to weigh in on getting the words right, which is an underappreciated aspect of what it is that we do here in the committees,” said Mr. O’Connor.