LOCALIZING CALIFORNIA WATERS: Erik Ekdahl on Water Management in the Uncertain Future

Water management in California has always been challenging, with the state’s variable climate that alternates between drought and floods that is further complicated by stark regional differences in water availability and demand.  As the effects of climate change continue to manifest, changing precipitation patterns are creating challenges for water managers and the state’s existing infrastructure.

In April of this year, the Localizing California Water: Ventura to SLO conference brought together resource scientists and policymakers to explore the many geographical similarities and vulnerabilities of coastal San Luis Obispo, Santa Barbara and Ventura Counties.

On the second day of the conference, the morning keynote speaker was Erik Ekdahl, Deputy Director for the Division of Water Rights at the State Water Resources Control Board, who shared his thoughts about how California’s communities can prepare for an uncertain future, focusing on three ideas: the drivers of water supply uncertainty, water rights and how that fits into water supply reliability, and value-based water management and collaboration.

Mr. Ekdahl began by acknowledging the title of the talk, ‘Water Management in the Uncertain Future’ sounds a bit ominous, but he hears from a lot of stakeholders who say they want certainty; however, there’s always inherently going to be a level of uncertainty going in to the future, no matter what.

You can’t predict the weather, you can’t predict climate, but you can start to put together the pieces and the places and the people that you’ll need so that when challenges come in the future, you’re positioned and you’re ready to work together to collaborate and find a path forward that comes as close as we can get to a solution that works for everybody,” he said.

WATER SUPPLY UNCERTAINTY

There are the three drivers that drive water uncertainty for the entire state: population change, land use change, and climate change.  He discussed each of these in turn.

Population growth

The first driver of water uncertainty is population growth.  Mr. Ekdahl presented a graph showing California’s population from 1900 to 2016, noting that at the turn of the 20th century, there were only 2-3 million people in the state; last year, the population passed the 40 million mark.  The date of completion of Oroville Dam in 1968 is shown because that was when the last big key piece of the state water infrastructure was completed.  Oroville Dam holds over 3.5 million acre-feet per year that is primarily devoted to State Water Project; that water goes through the assorted canals and pumps where it is delivered to Southern California and the Bay Area to supply water for residential, municipal, and industrial uses for over 25 million people.

However, the state’s population has increased by 20 million people since Oroville Dam was completed, he pointed out.  “Our state is plumbed for a 1968 population, and while they built in some extra capacity so it’s not instantly out of date, we’re nearing the capacity of what the State Water Project can supply in terms of overall volume.  We’ve grown by 20 million people; if you think of the volume needed to supply 20 million people, that’s a lot.”

This factors into where people live, how they live, and the types of communities they live in, he said.  Housing in California is a key critical issue; a report last year found that the state is behind 3.1 million housing units just to keep up with the current population to make housing affordable.  Housing is unaffordable for a large segment of the middle class, and it’s increasingly growing more and more unaffordable each day, he said.

By 2050, population is projected to hit 50 million people – another 10 million people over the next 20 years or so; Mr. Ekdahl noted that the figure was revised downward in 2007.

One way or another, we’re going to need an additional 4 million housing units, roughly figuring 2.5 people per housing unit, just to keep up with population,” he said.  “If you add that on top of the 3.1 million we’re already behind, we’re going to need about 7 million new housing units over the next 20 years.”

Where will the water come from?  Currently, an acre-foot can supply 2 to 4 households depending on where you are so by 2050, that means we’re going to need an additional 2 million acre-feet of water if we keep using water at the current rate that we do.  That’s not like a field of crops that can be fallowed during times of drought, he noted.

When you harden demand, you make it such that it can’t go away; you need it each year.  This is going to affect every community in California because we’re going to have to find a place for this water to come from.”

Land use

Mr. Ekdahl presented a slide depicting land use in the Sacramento Valley in 1920, noting that the peach color is urban, and peach color is agriculture.  There have been significant changes in terms of land use in the last 100 years, he noted.  In 1920, there was a lot of natural vegetation, forests, floodlands, riparian zones, and natural grasslands.

Fast forward one hundred years and it’s now urban areas and agriculture mostly, he said.  “The call on water has so dramatically increased from 1920 through the present that we fundamentally changed both the landscape of California itself and the natural environment in which that water comes from, so the ecosystems and the ecology have fundamentally been changed.”

Climate change

The 2012-2016 drought was transformational in a log of ways, Mr. Ekdahl said, although he acknowledged that the memory of the drought is starting to fade a little bit.

The snowpack is California’s largest water supply reservoir; most of the water comes from snowmelt, whether it’s going into the urban systems, whether it’s going into your groundwater, or even going into river systems, it’s coming from this cold pack of snow that slowly melts over time, he said.  In 2015, the snowpack was 5% of historic average, and studies of tree ring records and other climatological data have shown that the period from 2013 to 2015 was perhaps the driest consecutive three year stretch in 1300 years; 2015 was the single driest year in about 500 years.

So this really was a significant and an important drought, but it’s also something that we might expect to see more and more frequently in the future as climate change begins to manifest more significantly in California,” he said, noting that the California Natural Resources Agency recently released a fourth climate assessment report, and there are a lot of other reports as well.  “All of them call for more frequent and more severe drought, so we have to start planning now for what these droughts mean.

This year is a good water year, but we have to plan for what happens when it isn’t a good water year, Mr. Ekdahl said.

Looking forward, we think we’re going to have these hotter, drier, more severe and more frequent droughts punctuated by really wet years in between, and so while the overall precipitation pattern that we might see might actually not be that different than what we see today, it’s just going to be really wet, really dry, really wet.

There’s no such thing as normal, he pointed out.  “’Long term average’ in California doesn’t really mean anything,” he said.  “It’s kind of a bimodal distribution where we’re at one pole or another, and we have to figure out how to plan and prepare for that.  Historically California’s water collection system is a series of rim dams that go around the Central Valley and other places; we’re plumbed to collect snowmelt.  And what climate change is suggesting is that we’re not going to get this snowmelt, we’re going to get really intense dumps of rain, and so how do we plan ahead, how do we replumb or reconfigure our system to capture that and put that water where it’s most useful.”

Mr. Ekdahl then summarized:  “Those are the drivers that lead to inherent levels of uncertainty as we go forward.  How are we going to accommodate population change throughout the entire state?  Where are people going to live as the state grows from 40 to 50 million people?  How do we accommodate the land use change that has already occurred and how do we account for climate change that’s going to sit on top of that and really drive our precipitation patterns going forward?

WATER RIGHTS

It might seem like an abrupt transition but now let’s turn to water rights because water rights sit over all of those levels of uncertainty,” said Mr. Ekdahl.  “The idea behind a water right is that it does provide certainty; it says you have a right to use a certain amount of water.

Water rights is an inherently complicated topic, but Mr. Ekdahl distilled it down to five points:

1.  Water belongs to the people of the state of California.  “We often hear people say, ‘it’s my water right’, and it is, but it’s a right to use that water, and there are other things that factor into it, said Mr. Ekdahl.  But he pointed out that it doesn’t mean everyone has a right to the water.  “The courts have made it clear that land ownership and property rights have a very strong tie to the right to use water and the right to develop and effectively and beneficially use that water.

2.  A water right is usufruct.  This means you have the right to use it, but it’s not actually yours, he explained.

3.  Beneficial uses should be maximized.  “If you’re going to use it, it has to be beneficial, and the state has a directive to maximize the beneficial use of water.  That can mean a lot of things.  It can mean municipal development, it could mean agriculture, it could mean ecosystem services, instream flows – it is a balancing act that everyone has to look at and put together and figure out what is the best beneficial use of the water in any particular watershed or circumstance.

4.  There is also a directive that that water shall be conserved and not wasted.  He noted that one of the early water rights cases in California was two people suing each other because the upstream neighbor was over-irrigating their field so their downstream neighbor wouldn’t be able to take it, and the Court stepped in and told the upstream neighbor that he couldn’t do that.

5.  The water use must be reasonable.

So these five ideas govern all of California water law.  It seems simple, right?,” he said.  “It’s not simple at all.  In fact, it’s really complicated.”

Different types of water rights

There are at least 8 different types of water rights in California, and there are different rules and different ways the different types can be exercised:

Pre-1914 appropriate rights: These are very old and very secure water rights that were established before modern water law was established in California.

Post-1914 appropriative rights: These are the rights that the Water Board has regulatory authority over; those who want to appropriate water must get a permit from the Water Board.

Riparian rights:  These rights are a result or ownership of land that is touching the course of a river or stream.  These rights do not need a permit.

Overlying groundwater rights: Overlying land owners may extract percolating ground water and put it to beneficial use on their land.

Pueblo rights: These rights goes back to the pueblos that were established by Spanish missionaries.  The only two in the state that are known are for Los Angeles and San Diego.  He noted other people have claimed them but they’ve never been actually able to prove them.

Adjudicated rights: These rights are the result of a court judgement and can be for surface water, groundwater, or both.

Prescriptive rights:  Mr. Ekdahl described prescriptive rights as ‘somebody has been stealing water for so long that they get to keep stealing it.’  “Prescriptive rights were essentially made up by the court.  In an adjudication, they looked and they said, well, this community has been using water for so long, if we actually applied water rights as we understand them, they’d be out of water.  We can’t do that to 10,000 people.  We’re going to make up something called a prescriptive right.”

Federal reserved rights:  These can be for tribes or military installations.

Sustainable groundwater management

With the passage of SGMA, the issue of surface water depletion from groundwater pumping is going to become more pertinent to California.  Mr. Ekdahl noted that it won’t matter for some; in parts of the Southern San Joaquin Valley, the groundwater table is so low, the connection to the stream was lost a long time ago.

This is important because when you pump groundwater, ultimately what you’re doing is depleting the flow from surface water,” he said.  “It might take a day, it might take 100 years, or it might take 1000 years, but that’s all water that eventually would have gone underground, flowed through the aquifer, and flowed out into a lake, river, stream, or ocean. We’ve never had to account for that in California, and now with SGMA, there is recognition that there is a strong interconnectedness between groundwater pumping and surface water flows in certain areas, and that can have tremendous consequences for downstream users, as well as ecosystems that rely on both groundwater and surface water.

The public trust must also be considered.  There is a mandate to consider how water use affects common things that belong to all of the people of the state of California: the air, water, land, and environment.

What public trust basically requires is that we consider when we’re developing a new water right, a new water supply project, or developing really anything, how will it affect this whole ecosystem, this whole land, this whole watershed, and taking a comprehensive look at the whole and trying to balance the need for water supply, for ecosystem, for birds, for fish, for trees, and for all these different things.”

The public trust generally applies to local discretionary permitting.  “It doesn’t mean that we’re just responsible for going out and applying public trust to all of California.  We have about 40-45,000 water rights in California.  We don’t have the time, resources, capability, or even authority or legal mandate to go out and unilaterally apply public trust to everyone at once, without having studies, without having the scientific data to really backup that consideration.  But when we take a permitting action, we have to consider public trust.”

With the recent court case, Environmental Law Foundation versus State Water Board, essentially what that court case found was that local permitting agencies also have a public trust mandate when they permit groundwater extractions.

That’s going to have significant consequences for all the counties in California, which are typically the local permitting agencies for groundwater wells,” he said.   “Existing wells generally weren’t considered under the public trust before the court case when it wasn’t clear that there was a public trust mandate, but going forward, if there are new wells, whoever permits those wells is going to have to consider the distribution of all of these and how they play a role in depleting surface water flows in the basin.   And they do deplete surface water flows in the basin.”

MOVING FORWARD

So how do we move forward?  Kamyar Guivetchi at the Department of Water Resources once said that we’re entering the area of little water.

He didn’t mean drought, he meant that we’re transitioning from the big water supply projects like the Central Valley Project and the State Water Project to something that’s more like Integrated Regional Water Management IRWM, where we have a comprehensive set of goals for the watershed, we’re talking to everybody in the watershed, and we’re trying to figure out and establish a common set of priorities and goals moving forward.  Those are going to rely on distributed smaller scale projects that collectively add up to something bigger, so it’s little water, little bits of water here and there that are adding up more and more.”

So we are entering an area of little water where there might not be the supplies that we had in the past or the same sense of reliability that in 1950 or 1960, so how do we coordinate those two things?  How can we take distributed sets of series and actions and bring them together so they cumulatively add up to something greater than any individual part as well as provide a greater level of certainty and a pathway forward for the whole watershed?

The way that you do that is you have to collaborate, you have to embrace change, and you have to compromise,” said Mr. Ekdahl.  “Those are all really hard things to do.  Nobody wakes up in the morning and says today is the day I’m going to change and collaborate, it just doesn’t happen that way.  The way you do it is you start putting together these types of groups, these types of meetings, local interest groups, local watershed partners, that can look at what the watershed looks like now, plan for the change that they know needs to happen, and then go out and seek the collaboration they need to make those things happen.”

This approach will provide certainty, although perhaps not the same type of certainty that people have historically talked about.  “People say, I want certainty, I want to know exactly how much water I am going to have.  You may not get that,” he said.  “But what you will get is certainty about what to do when your supply changes.  Who do I go talk to?  Who can I look at upstream?  Who can I buy water from?  How can I offset my pumping now with pumping later on?  You’re putting the pieces in place to provide certainty down the road an inherently uncertain system.”

This must be done in the context of balancing the basin using a coordinated basin approach, managing both groundwater and surface water together.  There are physical solutions, such as imported water, stormwater capture, and Flood MAR.  There are Instream Flow Dedications available under Water Code section 1707, which is a type of water right transfer that leaves water in the stream system for ecosystems while at the same time, preserving the water right.  Offset timing of groundwater pumping where more water is pumped in the winter and stored as opposed to pumping in the summer; for some basins, this may be a viable path forward, he said.

Efficiency also needs to be considered.  Last year, the legislature passed AB 1668 and SB 606 which set out a new approach for efficient use of water.  Considering the projected population growth and the new housing units that are needed, we need to make the water use that goes on in our homes and in our yards as efficient as it possibly can be.  Mr. Ekdahl said that the efficiency levels called for in the legislation is reasonable and about half the urban water suppliers are probably already meeting the indoor water use or their total water use for indoor and outdoor combined.

It’s really putting everyone on the same level field and asking how efficient are you,” he said.  “Instead of mandatory cutbacks in times of drought, we’ll have a scenario and say, are you being as efficient as you can, and look at some real raw data and trying to put that together.”

Desalination is another consideration.  “We’re going to have to start making really hard choices about where our water comes from,” he said.  “There are definite drawbacks to desal.  It’s energy intensive, there are greenhouse gas issues associated with that that can be mitigated, and the intakes may have environmental consequences which can also be mitigated …  but if you’re trying to balance, what would you prefer?  Would you prefer completely drying up a creek so there’s no water left at all, or would you prefer developing desal which may be more expensive and may have some other environmental impacts that could potentially be mitigated?  I think people and coastal communities in particular will need to start taking a closer look at desalination.”

Demand management is the other side of the scale.  “We can put on pumping restrictions, we can make no-growth policies, and we can do land retirement,” Mr. Ekdahl said.  “If you don’t think enough about these, these are going to outweigh everything else, and so you need to be sure that you’re putting time and effort here so that you can balance it in a way that’s locally effective and valued by that community.”

VALUE-BASED MANAGEMENT AND COLLABORATION

So how do we put all this together?  “You have to look for project funding, you have to identify projects and figure out what they need,” Mr. Ekdahl said.  “You have to look at land use changes, and at the county level, decide what kind of land use you want in the future.  You may need to do different types of zoning, you may need to zone out certain agricultural practices, you may need to zone out certain land use development practices.  Efficiency is absolutely key; if everyone in the watershed can’t really tell how much water they are using or how much they are pumping, there’s no route forward.  People are going to need to start accounting and actually demonstrating how much water they used and when, and that’s the only way it’s all going to work comprehensively.”

New water also has to be considered.  “New water can be a number of things.  It can be desalination, it can be coordinated agreements, it can be voluntary agreements – look at places you can get water that historically you may not have looked at before.”

The key here is that all of these solutions are based on basin-scale collaboration and participation,” he said.  “No one can do just one of these things themselves; every one is going to need to come together and focus on what’s valued and what’s needed by that community.

What does your community value?  That is the key question.  Every basin may think their basin is not like anyone else’s but that’s not really true, he said.  All of the basins in California are really faced with the same three drivers of uncertainty:  How are they going to accommodate population growth?  How do they accommodate land use that’s already been established and will occur in the future?  And what does climate change mean for how they get their water?

The differences between each basin is what is the demographic of that population that lives in the watershed, how do those local values reflect the projects that they look at, the funding that they develop, and the need for new water in the watershed,” Mr. Ekdahl said.  “That’s the kind of value-based discussion that people will need to have everywhere in California as we go forward, whether it’s for SGMA, whether it’s for instream flows, or whether it’s for developing new supplies, what do you value and how do you instill those values in your water portfolio, and the watershed or environment that you live in.”

We’ve changed California a lot, and we will continue to change California as we move forward, and I believe we can, we just need to collaborate and really work together to figure out how and what it means for all of us.”

QUESTION AND ANSWERS

Question:  With the implementation of SGMA, my perspective is that the current configuration of senior water rights is not compatible with the goals of SGMA and is not really conducive to basin level collaboration and cooperation.  Do you believe that’s true, and if it is true, what kind of additional legislative evolution do we need to look at in terms of our configuration of senior water rights?

First, do I believe that senior water rights are incompatible with SGMA? No, not necessarily,” said Mr. Ekdahl. “I think though that there is going to have to be a reckoning a little bit.  A lot of senior water rights maybe aren’t very well defined and so the first part of this process is defining what are the water rights in the basin, who has what, when does it occur, and what’s the timing of those senior water rights.  It may not always be the same, and they are going to have to be better understood and have better data, so that everyone has an understanding of the starting point.  Only there can you really look at your SGMA plan and figure out what you need to do.  That’s also why SGMA has 20 years to reach sustainability.  When SGMA was drafted, there was never this idea that we just start with sustainability right away.  Here’s the first shot at the plan and in five year increments, we’re going to have to figure out is this actually working, what’s the response that we’ve seen, where are the opportunity for voluntary agreements, and can we collaboratively find a way so that, we’re trying to balance stated water rights as best we can; that may or may not work.  I think that we will certainly see a number of lawsuits related to SGMA and how that plays out over time.  But there’s a lot of authority in SGMA if people are willing to use it.  It’s going to be contentious and difficult.”

Question: SGMA is a good management tool.  We’re learning how to use it.  Our basin has the Ventura River is heavily influenced by surface water and there are surface water diverters.  Does SGMA give the Groundwater Sustainability Agency the authority to regulate surface water diversions and pass on the appropriate costs when their diversions are causing undesirable circumstances?

No,” said Mr. Ekdahl.  “SGMA is predicated on looking at groundwater extractions and it does not pass on those authorities to surface water.  So what do you do?  You’re going to have to balance out who is in line first, and that’s where the puzzle piece slide I showed you gets really complicated.  You’re going to have to figure out how overlying groundwater rights apply to the basin as opposed to surface water rights.  And here is where it gets more nuanced.  Who has higher priority – an overlying groundwater right or an appropriative surface water extraction?  I think there is a legal argument that says that the overlying groundwater right has a priority that’s roughly akin to a riparian user so does that put them in line of some other appropriative users?  It certainly does.  How old are those appropriative users, are they pre-1914 or post-1914?  When was the land patented?  Those are going to have to be worked out on a watershed by watershed basis.”

It doesn’t necessarily give the GSA the ability to regulate the surface water diversions, but it does perhaps reshuffle the priority in a way that people are not expecting or not anticipating,” Mr. Ekdahl continued.  “We’ll get some adjudications that come out of it based on that principle.  And effectively, that may end up curtailing surface water extractions, but be careful what you ask for because it’s not quite as simple as saying that gives the groundwater pumper carte blanche to pump as much as they want, they get their slice of the correlative share of the basin.  That might only be .2 acre-feet.  Better data, figuring out who is using water, and trying to collaborate so it doesn’t get to that point I think are much more effective, much faster, and much more politically sustainable pathways forward.”

Question: You talked about value-based and water usage and about the different types of water rights.  I noticed that in value-based, there’s not really a place for tribes to fit in.  With water rights, we talk about pre-1914, so what about all the tribes who were created in 1851 and 1852 had treaties that ceded land, etc., but never ceded their water and aren’t at the table?  You talked about federal reserved rights for tribes; that only works for the Part 83 tribes, but not the other hundreds of tribes in the state of California whose treaty rights were never ratified and are still waiting for water.

Unfortunately the way that California water law is established is that you are correct, there is not a priority specifically established for tribal uses or other tribal resources outside of the federal reserved, or if they come in through the otherwise riparian, pre-14, post-14 permitting system as it’s established right now,” Mr. Ekdahl said.  “But that doesn’t mean that there can’t be or shouldn’t be places at the table, and SGMA is specifically a place where tribes must be at the table because specifically of the interconnected surface water-public trust issue.  Recently the board established a tribal cultural resource beneficial use for surface waters, and SGMA plays directly into that, and so one of SGMA’s requirements is that you have to go and do outreach, you have to develop your stakeholders and make sure that the right stakeholders are at the table.  If those SGMA entities or GSAs aren’t doing that, then that is a problem and I think those GSAs are setting themselves up for legal challenges later.”

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