GUEST COMMENTARY: State Water Resources Control Board releases its first water-related climate change resolution

California Water Governance Takes Important Step Forward

By Robert Shibatani

The State Water Resources Control Board (SWRCB) released its new Resolution titled, “Comprehensive Response to Climate Change – Resolution No. 2017-XXX”.  This Resolution will, for the first time, provide SWRCB staff the opportunity to develop specific new guidance on the analytical methods, procedures, and permitting approvals associated with a wide variety of water actions under their authority.

Unlike its earlier Resolution 2007-0059 that identified only initial actions for climate change response set at a broad scale, this current Resolution provides greater detail, specifically as it pertains to both direct and indirect water-related actions under SWRCB authority (e.g., water rights, water quality, groundwater, water supply, Delta flows, SLR/coastal effects, etc.).  Significant emphasis is placed on the “what”, “how”, and “when”. What new information is to be developed?  How could this information be used and by whom?  When will this information be forthcoming?

While the successful implementation of the various provisions of the Resolution will benefit from close coordination with other State agencies (e.g., Air Resource Board, Energy Commission, Public Utilities Commission, Department of Water Resources, etc.), most of the required actions of the Resolution are completely within the purview of the SWRCB. All divisions within the SWRCB will have notable responsibilities under the Resolution including; Division of Water Rights, Division of Water Quality, Division of Drinking Water, Division of Financial Assistance, Division of Information Technology, as well as the various offices of Information Management and Analysis, Public Affairs, Public Participation, Enforcement, Legislative Affairs, and the Office Research, Planning and Performance.  The commitments shown by the Board and staff to forge ahead and complete this Resolution with so many other pressing issues facing the State is highly commendable.

Over the past decade, there has been a growing call for climate-sensitized water governance. This Resolution represents a significant milestone for the SWRCB and one that will help address that increasing demand for improved water governance.  Regardless of whether one is talking about source area streams or the Delta, effective regulatory oversight depends on having accurate and precise baseline data.  Since climate change is a forward-looking paradigm, it only makes sense that the relied upon baselines from which regulatory oversight is applied, should indeed be those that have incorporated anticipated future climatic shifting.  This Resolution provides the opportunity for the SWRCB to do just that.

Arguably the most significant feature of this Resolution is that it now provides SWRCB staff with the means to use a new hydrologic baseline in virtually all regulatory actions under its authority. A singular, vetted future hydrologic baseline, one that acknowledges climatic extremes, and revises antiquated metrics, can now serve as the hydrologic standard for both permittee and regulator.  The advantages of this equity represents a remarkable accomplishment.  No longer would there be inconsistencies in hydrologic baselines between the SWRCB’s own approved actions.  No longer would the SWRCB assume default positions in other State and federal initiatives.  No longer would petitioners be unsure of what hydrological baselines the SWRCB will request they use.

But such benefits go much further than simply addressing the matter of consistency.  Ostensibly, the Resolution now provides the SWRCB with the capability, should it choose, to re-evaluate California’s system yield in the context of long-standing water rights, something never before undertaken on a Statewide level.  This could occur as an independent new SWRCB action, something incorporated into an already ongoing SWRCB initiative (e.g., Water Quality Control Plan Update) or, simply something asked of a petitioner of a new water right (as part of a petitioner’s water availability analysis).

Depending on the comprehensiveness of such an undertaking, it could provide the basis to help finally address many age old questions such as; “Are we over- or under allocated across our various watersheds and rivers?”  Or others such as, “Are the prescribed instream flows supportable in the long-term?”, “How far will unimpaired flows ultimately deviate from current flows?”, “Should the SWRCB have a central role in new reservoir reoperations?” and, “How will recalculated recharge affect future basin Safe Yield estimates in managed groundwater basins?”

The Resolution itself does not answer these questions, however, it does provide the means with which these questions can be answered.  As with any new regulatory action, however, there are differing opinions as to how far this Resolution can, or, should go.  Some will downplay its importance, others will claim regulatory overreach.  The answer is that neither is true.  Improving hydrologic fidelity is not a partisan act.  It simply adheres to the belief that one should always follow best available scientific practice.  Whether one benefits from an improved hydrologic baseline really depends on how thoroughly one understands its implications, its effects on one’s regulatory approvals, and the ability to negotiate acceptable adaptations.

This new Resolution provides the first steps towards effective long-term water resources governance in California.  As the initiation period unfolds, there will likely be many starts and stops.  Its real effect will come from the case-by-case discretion applied by SWRCB staff in their interpretation of how to exactly implement or apply relevant portions.   For California water resources, this new Resolution represents the long awaited missing regulatory piece in climate change adaptation.

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