Panel of prominent attorneys discusses how the state's water rights system performed in the drought and what changes, if any, should be made to the current system
California's recent drought and the State Water Board's curtailments of water rights starting in 2014 has brought complaints about the state's antiquated water rights system and alleged oversubscription of our surface water resources to a crescendo. Even during non-drought conditions, our state's water rights system is complicated. The multiplicity of Native American tribes in the state with unquantified yet priority Winters rights adds an often overlooked layer of complexity to the state's water rights system.
Some argue for drastic reform while others prefer maintaining the status quo. Many express concern that our water rights system produces winners and losers, and inhibits sustainable management of the state's resources.
At the 2016 California Water Policy Conference, a multi-faceted panel of prominent water lawyers that most interestingly included a lawyer who represents tribal interests discussed how the state's water rights system performed in the drought and what changes, if any, should be made to the current system.
Valerie Kincaid, a partner in the firm of O’Laughlin and Paris LLP; her practice focuses on water law, including water rights, water transfers, water quality, and groundwater matters. She also handles environmental law issues related to the use of water resources including state and federal endangered species law, public trust issues, and state and federal environmental regulations. Valerie represents various public irrigation districts, water districts, and water authorities in the area of permitting, enforcement, and regulatory matters in both the administrative and judicial lights.
Michael George, the Delta Watermaster, was appointed to a four-year term in January of 2015. The Delta Watermaster is an independent officer of the state who reports jointly to the State Water Resources Control Board and the Delta Stewardship Council, and has statutory responsibility for administering water rights in the Sacramento and San Joaquin River Delta. Prior to starting his term, he was active in western water law and policy as a water lawyer, as the CEO of a publicly traded water resources management company, as a senior executive of an investor-owned water company, as well as an investment banker serving both public and private entities in the water industry.
Scott Williams is a partner in the firm Berkey Williams LLP, the firm provides comprehensive legal services exclusively to Indian tribes and tribal organizations. The firm’s work has included representation of a tribe in negotiating agreements to remove dams and restore the Klamath River in California and Oregon, quantification and protection of water rights for tribes in Nevada, Colorado, and New Mexico, and protection of tribal access to significant off-reservation cultural sites.
Professor Richard Frank is the professor of environmental practice and director of the Environmental Law and Policy Center at the University of California – Davis School of Law. From 2006 to 2010, he served as the executive director of the Center for Law, Energy and the Environment, and is a lecturer in residence at the UC Berkeley School of Law. Prior to that, he served in various legal capacities for the California Department of Justice, culminating as chief deputy attorney general for legal affairs; during most of his career with the Department, he focused on constitutional, environmental, land use, and public land management issues.
Joseph McIntyre, president of Ag Innovations, a nonprofit organization that brings stakeholders together to work on some of the most contentious issues in the American food system, from GMOs to water to land use to food safety.
He began by setting the stage. “The state has been enduring an extended and severe drought, and the question has come up, are we managing our water resources correctly? Are we using the tools that we can to maximize the beneficial use of water? Is our property rights system as it relates to water serving the public’s interest and making sure that water is used in the most efficient and effective manner? Simply put, the question before is, does our water rights system work? And if it does, for who and it what way? And if it doesn’t, for who, why, and what can be done?”
“There is no simple or easy answer,” Mr. McIntyre continued. “California water rights history and water rights law goes back to 1850 when we were first enshrined as a state and adopted English common law for defining water rights for riparian use. A year later, California adopted its appropriative rights, which had to do with essentially how to manage how water was being used by miners, but which became the law under which we finally distributed most of the water that exists in California today. These two systems sit side by side in some uncomfortable marriage and what exactly is that marriage – if indeed there is one. Which leads us to that question, does it work?”
First question to the panelists: how well did the California water rights system perform in the drought?
“I think that the regulators really struggled a lot in this drought, compared to the 76-77 drought. Maybe they didn’t have complaints to manage, but they were looking for a position and I think they were looking for an action to take. There was clearly this extreme drought that we were all in and they couldn’t sit by and do nothing. There was the drought legislation in 2014; they came out and did emergency drought regs and curtailment, and from a water users perspective, those were okay, legally. I think from the State Water Board’s perspective, my guess is that they felt like it didn’t save any water; there wasn’t any extreme action. So in 2015 they changed that direction a lot and came up out with curtailments and enforcement. We’re still seeing how that’s playing out at the State Water Board right now, but from a water users perspective, that was largely an unsuccessful effort. I’m not sure that they could quantify any water that was saved or conserved, and I know other colleagues who could very easily quantify the dollar amount of defending against enforcement actions. It was very expensive, it was very intense, and we don’t know the outcome yet, but it looks like they will be dismissed.”
Delta Watermaster Michael George began by noting that he is speaking for himself and not the entities with which or for whom he works.
“I agree completely that the best part of the drought story was the way water managers who had prepared and planned for shortage implemented those plans, worked out compromises, and figured out ways to deal with the terrible shortage. But our system is supposed to have some certainty and the ability to allocate shortage. Just start with the fact that riparians are supposed to experience shortage on a correlative basis – that is they share the shortage in their percentage, and yet the appropriative system is much more draconian – you cut off the junior to save the senior; it is a rigorous priority system. You can’t administer those two systems side by side because there are riparians side to side with appropriators. That’s a big problem, it is a problem that has been baked into the state laws since way longer, since really the hydraulic mining days as the appropriative system came out of mining. So we’ve had it for a long time. In 2015, four years into a drought, when the State Board attempted to administer it, I think we did better in 2015 than we did in 2014. We have to do a lot better to make it work.”
Moderator Joseph McIntyre asks Scott Williams from the perspective of the tribes, how did the water right system work?
“To take one example, diversions continued out of the Eel River into the Russian River throughout the drought. They went down, they were modified, and there were periods of variances and things like that, but fundamentally, diversions out of the Eel River basin into the Russian River basin continued. And that process keeps the Eel River basin in the state of economic poverty as compared to the Russian River basin which is doing quite well.”
Professor Richard Frank
“With respect to your question about how that water rights system was performing in the face of an unprecedented drought that we’ve been experiencing over the past five years, I go back to the adage, where you stand depends on where you sit. … I think the folks that have done the best and have been served the best by the existing water rights system have been the urban users – municipal and industrial, residential uses. As a result of some sacrifices and implementation of Governor Brown’s 25% urban conservation mandate, I think on a macro sense at least, urban users have come through the drought so far pretty darn well.”
“Turning to agriculture, it’s a mixed story. On a macro sense again, and contrary to what you might be hearing in the general media, the evidence shows that up until now, agriculture has done not as well as urban users, but pretty darn well on the macro sense. Gross state agricultural revenues are actually up each of the last two years relative to what they were before the drought. To be sure, several thousand acres of land previous cultivated have been fallowed in the face of the drought, and some ag employees, particularly farmworkers as a result have been out of work, but largely as a result of the conversion of many lower value row crops to higher value crops like vineyard and orchards and reliance on groundwater sources when surface water deliveries have been limited as a result of the drought, have meant that on a statewide basis, ag has done pretty well.”
“The big loser in the current drought as a result of the existing water rights system has been the environment. The environment has been hammered, already listed threatened and endangered species are in worse shape and I don’t think the California water rights system in this era of drought has responded well and adequately to the needs of the environment and those like Native Americans who rely on them.”
Moderator Jim McIntyre: “Tribal interests were clearly not actual factored into the equation in some cases. Scott, tell us a little bit about the unique position that California tribes find themselves in relative to their water rights and their position in the system.”
“The amount of the water that’s granted depends on what theory one uses to determine how much water they are entitled to. For tribes with the capacity to irrigate, there’s something called a PIA, practicable irrigable acreage standard. Otherwise it’s known as the homeland standard. If the purpose of the reservation is to set aside a home for the Yurok people, then how much water do they need to satisfy the purposes of that reservation? If the purpose of the Yurok Reservation was to create a safe place for fishing people, then how much water do we need in the Klamath River to make sure they have fish? That’s the amount.”
“Indian water rights are theoretically entire separate from California’s water regulatory system. The tribes aren’t subject to California law. The reservations are in California; the Klamath River flows through California, so at some point we have to acknowledge and deal with California water rights, but the state in theory has no authority to regulate the water inside an Indian reservation, so that is the way in which I continue to fulfill my assignment of reminding you that there is an additional layer of complexity here.”
Audience question: Agriculture uses most of the water, so why were the restrictions focused on urban users?
“There’s this myth in California that ag uses 80% of the water; it’s an input to a product that ends up on our dinner tables, or granted in almonds that were shipping to China, but the fact is water is an input for what people eat. I haven’t had many people who want more conservation on the ag side to agree to give up one of their three meals a day.”
Urban water users can pay huge amounts of money for water. An urban agency can pay $2000 an acre-foot of water, and ag sometimes is charged only $12 an acre-foot, so there are huge economic disparities too, and that drives water use as well. … Ag is also the sector that really bears the burden of water quality objectives, flow objectives; it’s very rare that it’s an urban that is giving to those because they can pay so much more money for water.”
Professor Richard Frank
Moderator Joseph McIntyre then asked about curtailments. What is a curtailment, and what do we know about the potential short and long-term consequences of recent drought curtailments?
Professor Richard Frank
“There wasn’t really a systematic means utilized to try and impose those curtailments up until 2015. They just muddled through ad-hoc relying on things like the cutbacks in water contract deliveries from the State and federal water projects, but that wasn’t really a systematic system of curtailments. Last year, for the first time in a long time, the State Water Board attempted to impose a more systematic curtailments, and it did so by relying upon and working through the traditional system of senior and junior water rights. The most senior rights were insulated and the Board started its curtailment with the most junior which are the most recently developed and asserted water rights, and so it provided for some unequal results.”
“In my opinion, the board had the ability to be far more equitable in imposing those curtailments under existing law; it doesn’t require changes. They have two overarching principles of California water law: one is embedded in our state constitution, a mandate under article 10 Section 2 a requirement that all water that is used in the state is subject to the requirement of reasonable use, and conversely that water cannot be wasted. The second doctrine is one that was originally articulated by the California Supreme Court in the so-called iconic National Audubon decision that is now part of our state statutes; it’s in the water code, and that’s the public trust doctrine. Those two doctrines separately or together give, in my opinion, the state board a lot more authority to adopt a curtailment protocol that spreads the pain more fairly, albeit those people who hold senior water rights would say it is very unfair if their senior water rights are not affected.”
“In any event, to broaden the curtailments and impose them more evenly, and at least in 2015, the water board did not choose to rely on either or both of those key doctrines in imposing the water curtailments that they did. I would think, assuming that we’re in an era of ongoing droughts or series of droughts in the light of climate change, would hope and expect that in the future, the water board will be interested in relying on some of those overarching doctrines to sand off the corners of hardships related to curtailments.”
Moderator Joseph McIntyre asked if curtailments impacted the tribes this year. “Were they affected? They are not subject to California regulatory schemas, so how does it play out?”
“One of the things about federal Indian water rights is that the priority date is determined by the date the reservation was created for many tribes, is that if they are on their ancestral lands, their priority date is time immemorial. They beat everybody. But the State Water Board doesn’t administer those rights, so if an Indian tribe wanted to say that those upstream users can’t divert because we have a time immemorial priority right down river on our river, that would require going to federal court. That would require anywhere from 3 to 7 years of litigation and $300,00-$400,000 a year against every single water user on that upstream river. It is totally unworkable and impractical way to enforce water rights, and for many tribes, their priority dates and their water rights are not adjudicated for the same reason. We’re involved in a water rights adjudication in Southern California that has been going on for 60 years. I don’t have answers for this. I’m adding complexities.”
In the Delta in particular, how did curtailments work?
“One of the reasons that the priority system was designed was to protect someone who came and put water to beneficial use. That was the strategy of the state, to put water to beneficial use to build its economy and to build its systems, but you had to protect that first comer against someone who would come later and would put in another straw upstream, so when we talk about changes to the system, fairness is largely dependent upon where you stand in the existing system. You might think it was extremely unfair if you were first to come, made significant investments, built your chip factory or beef factory or almond factory on the basis of a prior right, and have that taken away. Now we have ways of doing that in a democracy, and in the US, the fifth amendment of the constitution says when there is an overriding need to take away a property right, we pay for it.”
“Now let’s not be confused; water is a sovereign asset. It is the right of use regulated by the state under state law, and the federal governments rights have been subjected to state law in all the 50 states, so we have a system. It doesn’t work very well. The question is, tinker with the system or throw it out and start over? I don’t think we have the ability to throw it out and start over, so that takes us to these doctrines. I happen to think the State Board has a lot more capability of meeting its responsibilities through the reasonable use doctrine than the public trust doctrine. And I think that’s where we’re going to see the law and the practice extended more muscularly.”
“In 2014, the State Water Board approach to curtailment was through emergency regulation. I think as everyone knows, the Governor issued a drought proclamation and in that, he created water code 1058.5. 1058.5 issues emergency regulations. It allows the State Water Board specifically to issue curtailment emergency regulations. From my perspective, this is the only way the State Water Board can curtail, and it’s for a limited time. These are emergency actions that the Governor has given the State Water Board. These are not regular water code tools that they can use.”
“Another complexity we haven’t talked a lot about is the difference between a pre-1914 and a post-1914 appropriative right. Certainly it’s my position that the State Board cannot regulate and did not issue a pre-1914 right. The emergency regulations that allowed them to curtail specifically acknowledged that; they said you can curtail post-1914’s in this manner. In 2014, the State Water Board went through a harrowing process of drafting curtailment regulations, looking at them, having policy direction weighing in, changing them literally on the fly; at the end they had a post-1914 curtailment reg and a pre-14 curtailment reg and they got to the end and the State Water Board adopted the post-1914s consistent with 1058.5, and decided to walk away from the pre-14 curtailment regulation because it wasn’t allowed for by law. They did the right thing, but unfortunately, we were looking at June at that point, very little water savings resulted from that and that was frustrating, and I understand that.”
“Fast forward to 2015, it was a completely different process. It was from a practitioner’s perspective who was there representing clients in this process, it was night and day. No one even talked about 1058.5, there were no regulations proposed. State Water Board staff came out with a regulation that was watershed wide and included pre-1914s. As practitioner, I had no idea where they would come up with that; I don’t think it’s based in any legal theory. In my opinion, they were frustrated by the red tape of not getting to pre-1914s and not really having any water impact of doing it the regulatory-approved way. And so in 2015, they came out with watershed wide curtailment, and it was frankly confusing what that meant. Was it that people were shut off, was the question. When you got a curtailment notice from the State Water Board, was your water right done or was it suggested that there wasn’t water available for your diversion.”
“In the penalty phase of that and when you violate water right law, it really depends on that. Were you just told you have no more water and the State Water Board made a decision on your water right, or were you told we think there isn’t enough water in the system, proceed at your own risk? We got in this huge legal argument and debacle that is still ongoing over the issuance of that curtailment notice, and that’s what happened in 2015. So the process from 2014 to2015 was vastly different. We’re all still litigating the meaning of that curtailment notice.”
“Unfortunately, I think that there wasn’t a lot of success in both ways. I do understand the frustration from a regulators perspective – that you feel you need to be on the ground really making a difference in2014, but from my perspective it was way outside the envelope in 2015, but I’m not sure anymore other than pushing the envelope was achieved in 2015 on the ground either. So it’s tough.”
Professor Richard Frank
“I’m well aware of the litigation over the water board’s efforts to impose curtailment efforts in 2015. You have a pre-1914 appropriators and riparians saying that the board has no jurisdiction whatsoever over them, that the Board can’t even demand that they report water diversions to the water board, which is to me rather extraordinary and legally unsupportable position, so we’ll see how this litigation plays out. I would be very surprised if the Board’s authority under the reasonable use doctrine and the public trust doctrine to the extent the Board seeks to assert it, is not upheld with respect to essentially all water rights in California – a not uncontroversial position.”
Moderator Joseph McIntyre then recapped the discussion so far. “Michael, you have said that water is a sovereign right subject to fifth amendment taking provisions, so it’s bedrock; it’s a property right, just like my house, just like everything else. Valerie, you said the State Board could under emergency regulations as described in 1058.5, curtailed the only way they could, curtailed post- 1914 water rights, it was an emergency temporary order having to do with a unique hydrological condition. But in 2015, they went well beyond that and they covered a whole watershed and included pre-1914, and all of a sudden we’re in different territory, that it’s unclear whether or not that the state actually has the ability to curtail under those conditions. Then Richard you make the point that no, actually reasonable use doctrine and public trust doctrine may actually give the state a public interest in that.”
“Now the State Water Board and other folks know that, that’s why those are their doctrines du jour. That is the first thing that they try to pull out, because they are doctrines that are outside and can penetrate that water rights system on all levels, unlike other things. Now from my perspective, I see those different than curtailment.”
“Now that may not be viewed as fair particularly by people who perfected their right later in time, but that’s what the law is and that’s what the attempt of the curtailment process was. It was poorly handled, we were learning, and we didn’t get it right, but the theory on which the State Board operated was to say, there’s only this much water in the system. And we started giving people the notice that we’ve looked at supply and demand and here are the curves and here’s where they cross; and so we started cutoff everybody with post 1914 rights, and then we started to cut in, not to say we’re regulating your right, but to say there is not water available at your priority.”
“The term curtailment and a lot of the arguments will get sorted out, but where the cheese comes to bind is where you figure out there’s only this much water in the system and who’s got the right to it; if it’s a seniority system, in order to prevent unlawful diversions of that water, you’ve got to stop the juniors, and that was the attempt. Not entirely well administered, but that’s what was going on. The guiding principle underneath this is ‘first in time, first in right’. It’s an interesting doctrine because you wouldn’t teach kids necessarily that in terms of how to allocate how they play with blocks. You wouldn’t create that system necessarily today.”
Moderator Jim McIntyre turned to Scott Williams and asked him to bring in the tribal perspective. What might they say about the guiding principles of water?
“The guiding principle that has moved Indian tribes in the last 15 years toward shortage sharing agreements or equitable allocation agreements is not to litigate priority rights and time immemorial rights in a federal court some place. That hasn’t produced wet water; we’ve done that. It just doesn’t generate water. What has produced wet water for Indian tribes is figuring out where the common values are with the upstream water users and the ocean fishers, sitting down together in a room and not talking past each other, not making speeches about who is right or who was here first, but figuring out how to share a common resource. It has worked, water basin by water basin. If it hadn’t worked, I’d feel silly here about proposing this as a solution, but the Bay Delta has been the subject of these kinds of conversations for many, many years and it aint’ done yet there. The Klamath isn’t over, the Eel isn’t over, but I don’t see that an inherited legal system of appropriative rights and riparian rights and priority systems and discuss arguments over the extent of the State Water Board’s authority is going to solve our problems for us. I just don’t see that happening.”
Audience question: There have been analyses done that show the amount of water rights that have been granted is many times larger than the annual average runoff in this system, so how are we going address that fatal flaw in our current system when one thing we know about this system is we already living beyond our water means in this state, and when you factor in climate change and then groundwater, here does that drive us with regards to these discussions of water rights and whether we tinker with the existing system or we redesign it from the ground up?
Professor Richard Frank
“As the state’s population continues to grow, we’re going to have more people fighting over a shrinking resource, and we really haven’t even talked about climate change and how that’s going to reduce the amount available for human purposes water in the years and the decades to come. It’s going to be a difficult process but, to answer your question directly, in my view at least, there’s no additional water to speak of in this system.”
“Now that’s what the law is. You may say that the law might need to change, but remember when you do that, you’re then going to get into the very sticky problem that we might all agree that the current system doesn’t work very well, and we need to start over, but it’s like having a constitutional convention. We probably couldn’t get to anything that works as well as what we’ve got because we wouldn’t agree and we wouldn’t have the political wherewithal to come to an agreement in an extraordinarily diverse society.”
“There are practical things you can do to reduce paper water problems, but to be honest, when you’re in the system, it’s in major drought times that people start complaining about shortage, so from my perspective, that makes me feel a little bit better that we’re oversubscribed but there’s a lot of people holding a piece of paper that don’t use it. “
“There are also return flows, and it’s the same problem with the water availability analysis that was done in curtailment. If you’re overprescribed but there’s tons of return flows, how do you count that? Once it’s diverted once, how often can you recount a return flow? It’s complicated, and so you can’t just say full natural flow input, prescriptive output, we’re done – that just ignores the complexity of the system.”
Moderator Jim McIntyre: “Where we can go from here? Given the challenging hydrological conditions that we faced in the past and we’re likely to face in the future, what are the actual incremental changes that we could make right now or in some reasonable way, where a diverse group of litigators could potentially agree, where are the opportunities for people to come back and talk together about reforms that would make life better for everyone?”
“From my perspective, increased reliability of water supply needs to happen for not only water users, but for the environment as well. I’ll tell you as a representative of water users, those folks want the environment to do well as well, because if for no other reason – even if they are horrible, cold hearted people, it means less regulation for them. They are not cold-hearted; they are stewards of the system, farmers are out there on the ground dealing with the ecosystem and the system that they run every day, so they do care and they are invested.”
“Certainly coming together and talking about reliability. I don’t think paying for ecosystem and fish flows is off the table to create reliability for that system; I don’t think shifting around and transferring water is out of the purview of what people should talk about, but we should all come together and talk about what we all really need to maximize the beneficial use of water for everyone, and if that beneficial use is having water in the fisheries and keeping water local and regional, then that is a priority that everyone has to put on the table.”
“There’s a lot of things that we can do. In times of shortage in particular, the system kind of goes wacky because we don’t have a very good system of knowing exactly who is in line and what’s going to happen, so again from my perspective, it comes down to reliability, both of water deliveries and what happens to the ecosystem in times of shortage.”
“The challenges that we’ve had in the times of shortage in the last two years is that we’re all trying to make up the system as we go, and everyone has their different perspective and wants to put their different card on the table. It would be nice if we didn’t have to do that while we are under the gun. It would be nice to come back in times of plenty and really talk about how the system is going to work, and how people think the system should work fairly and provide reliability for all uses, and plan for that in times of plenty because I think that’s going to help in times of shortage.”
“We have to do some things. One thing is I think some of the litigation that has been set off is going to be useful because there are aspects of water rights law on which learned counsel have very strong well-developed arguments that need to be resolved. One of these things I’m trying to do is get some of those issues teed up so the water board can make a decision on the merits to resolve the issue. We all know that there’s too much at stake to leave it there. Whatever decisions are made to resolve those ambiguities will be appealed to the courts, so ultimately over a period of time, processes that are already in place are going to result in some certainty over some issues. We can get some clarity, and that’s a good thing.”
“We can accelerate that by getting better information, knowing what the priorities are, and how much paper water there is in the system, so again, we’ve set some things in place. Last year in June, the legislature passed and the Governor signed SB 88, which improves the information that we get about who is using the water, for what purpose, and where so that we can start to sort out the rights to the natural flows compared to the rights to the return flows, etc.”
“In 2014, we embarked on this long term process of integrating and rationalizing our use of groundwater. We’re 100 years late to the party, but we’ve started, and we need to work through that process in a way that allows people to make decisions about what the future will be like. That means we have to identify for instance, a line in the sand that people can look to. Twenty years from now, we’re going to have sustainable groundwater management basins and we’re developing plans, so that people can know what that means to them, they can arrange their affairs in light of a more certain future. “
“Right now we irrigate about 9 million acres in California, and it’s pretty clear to anybody who is looking at it with climate change with the change in hydrology even in a normal year, even probably in most wet years, we don’t have enough water in the system to support that much irrigated agriculture. We can’t turn on a dime. What we ought to be saying in my view is twenty years from now, the ag sector is going to have to be sustainable, profitable, but safe and affordable food on our tables using 60% or 70% of the water that currently goes to food and fiber. Those are the kinds of things that we can do that are practical that we can start today some of which will have value to us the next time we get into a drought, and we all think we’re going to be in droughts more often and perhaps more sustained, those are the things that we can do now to make it incrementally getter as we go forward.”
“Secondly, there are ways that we can more efficiently preserve and use the water that we have. Forest rehabilitation has the incidental benefit of reducing fire risk, and it generates water. Aquifer Storage and Recovery projects, are expensive but they work. I think that small off-stream storage is very practical and not that expensive, so there are ways to be efficient and sensible about how we use water, in addition to all of the conservation things . I think the debate about drip versus flood and return flows is a difficult one.”
“The third point is that I think that the sustainable groundwater legislation is not perfect, but very interesting in the approach which starts with local communities figuring out how best to use their groundwater and what the problems are and how to fix them. There are places in this vast and diverse state where water basins can get together to figure out how deal with shortage, now and into the future. We may not be able to predict when it’s going to come or how great it will be, but we can figure out how to deal with it and how to increase degree of certainty in that basin that they will get the water that they need. It may be 60% of what they have an entitlement to, but they are going to get it.”
“There are other places in California where that’s more difficult. The Central Valley water system is extraordinarily difficult, and it’s hard to get people in Los Angeles to sit in the same room with the people in Northern California and look each other in the eye and figure out how to deal with shortage. So there are challenges there, but the notion that is embodied in the sustainable groundwater statute, late as it is, is a valuable one and one that we are really trying hard, our clients are trying very hard to implement.”
“It’s difficult for the tribes to swallow 200 years of horrors and sit down with the people that have taken their land and taken their water, and figure out how they can live as neighbors. But if they can do it, the rest of us can do it.”
Professor Richard Frank
“The 2015 legislation to create better monitoring and reporting of diversions and use, and that relates to surface water; we’ll see how SGMA legislation works out, which doesn’t require but authorizes the same kind of monitoring and reporting with respect to groundwater extractions – I think that’s essential as many key officials have said, you can’t’ manage what you don’t measure and I think that’s exactly right.”
“Good examples in localized areas of two other reforms that I want to mention. One is conjunctive use, which is a fancy term for managing surface water resources collaboratively and in an interrelated nature with groundwater resources. If and when we get our groundwater resources into a sustainable condition, we need to adopt a system where in wet years we use the excess surface water to recharge groundwater aquifers so that in dry years we can use groundwater aquifers as that savings account and draw water from it. Good example of that is in Orange County. We in Northern California like to look down our noses at Southern California, particularly when it comes to water issues, and that’s unfair because some of the best and most successful efforts at groundwater management in general and conjunctive use practices is coming from Orange County and we should learn from that.”
“Finally, water marketing. I’ve become a reluctant convert to more reliance on water markets. I think that’s going to be a key part in stretching those finite water resources to make their use most efficient in the coming years and decades. To make that happen in my opinion, water markets and water marketing has to be a lot more transparent and publicly accessible than it is right now. In recent years, it’s been pretty much a black box and that generates a lot of distrust and apprehension in the media and the general public, so we have to get past that. There’s legislation pending in the California legislature this year that would start in that direction. A good model and precedent is there, with respect to energy and electricity in particular, we have developed a state of the art system through the California Independent System Operator to make a transparent system and effective system of moving electricity around the state in a very efficient way and I think using that as a model and applying it to water markets and water reporting is a great way to go.”
Closing question: What is one transformational thing we could do in this system, what is the thing your users would love to see happen?
Professor Richard Frank
More from the California Water Policy Conference …
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