WATER LAW SYMPOSIUM: Climate change adaptation, equity, and water

State Water Board member Laurel Firestone talks about the need to bring equity into our climate adaptation actions; Professor Karrigan Bork looks at temperature projections for California

The California Water Law Symposium is an annual collaborative student-run event that brings together leading minds in water law to discuss California’s critical water issues. Led this year by UC Davis School of Law, participant schools included USF School of Law; UC Hastings College of the Law; UC Berkeley School of Law; Golden Gate University School of Law; and University of the Pacific, McGeorge School of Law.

The theme of this year’s conference focused on climate change and adaptation.  Professor Karrigan Bork, a UC Davis King Hall’s environmental law faculty member, gave the introductory presentation to set the stage for the rest of the conference that highlighted the heat impacts that are projected for California over the next century.  Then, State Water Board member Laurel Firestone gave the keynote address, focusing on the climate change impacts that are disproportionately impacting frontline communities and the need to bring equity into how we adapt to these impacts.

Here’s what they had to say.

PROFESSOR KARRIGAN BORK: Turning up the heat on adaptation

Professor Karrigan Bork teaches courses on water law and California environmental cases and manages UC Davis King Hall’s environmental law externship program.  His publications range from the definitive text on the history and application of California Fish and Game Code Section 5937 to a hatchery and genetic management plan for spring-run chinook salmon. Professor Bork is currently examining legal and ethical issues in ecological restoration and working on local governance issues and ecosystem management.

Professor Bork began by describing the difference between climate and weather. “The way I like to think about climate is if you’re going to go on vacation and you’re picking a place to visit, you pick where you’re going to go based on the climate.  You go to Hawaii because you like the climate in Hawaii,” he said. “Weather is something that we often confuse for the climate, but the weather is much more about what you pack to wear on your trip to Hawaii. So you pick your place based on climate,  and then the short-term variability is the weather.  Weather and climate, although connected, are obviously two separate things.”

The image on the slide shows the change in carbon dioxide per 1000 years; it’s a new and perhaps better visualization of the amount of carbon dioxide and greenhouse gases being put into the atmosphere than the traditional ‘hockey stick’ graph, Professor Bork said.  The graphic is from an article called ‘The Carbon Skyscraper’ published in the Washington Post on January 12 of this year written by Benjamin Strauss.

Charted in this way, you can see the huge increase in the rate of carbon dioxide addition and the change per 1000 years,” he said. “This actually underestimates it; we can’t really get down to the 100-year scale for these very old emissions. But the maybe three-quarters of the peak is just looking at the last 100 years of greenhouse gas emissions.”

Those emissions are already driving significant climate change here in California.   There are increasing temperatures, with hotter hots and higher cool temperatures, so it won’t get as cool in the winter, and summers will be hotter, longer, and drier.  This will increase fire risk and air quality impacts, and the snow will melt faster.  Changes are expected in precipitation patterns; decreasing snowpack and more intense and infrequent events.  Other impacts include sea level rise, more demand for water, less water available, increased need for groundwater, and increased risk of saltwater intrusion.

I want to note at the outset that these impacts will disparately impact our disadvantaged groups in California,” said Professor Bork. “This is not a burden borne equally by all people throughout the state.”

To give an idea of what the state is facing, Professor Bork focused on just the very hot days in California and how they are projected to increase over the next hundred years.

The graphics below are from a New York Times article in 2016, which visualizes the changes in days in the triple digits.  The graphic on the left shows the Central Valley historically having about 10 to 25 days with temperatures in the triple digits over the past 20 years.

The middle graphic above shows that by 2060, there is a tremendous increase in days above 100 degrees, and by 2100, there will be well over 50 days where temperatures will be in the triple digits.

If we look at Fresno as a marker for the Central Valley, 72 days above 100 degrees expected by 2060, and 101 days above 100 degrees expected by 2100, which is pretty darn close to where Phoenix is right now,” he said. “So if you’ve been to Phoenix in the summer, we have something like that headed for the Central Valley over the next 40 to 80 years.”

We can understand what those changes mean and how uncomfortable it will be; there will be increased power needs to keep places cool and safe to live, and increased water needs for agriculture as the increased evapotranspiration is going to drive increased water needs.

However, one of the pieces we don’t understand as clearly is what this means for California’s ecosystems, Professor Bork said.  Armadillos were historically constrained by temperature to Texas, and points south but now have moved up through most of the lower Midwest due in part to increased temperatures.

Increasing temperatures will allow invasion by new species,” he said.

Increased temperatures will also impact winter-run chinook salmon and other species. “Just based on the temperature change, we’re expecting about a 38% on average turnover of species in North and South America over the next 90 years,” Professor Bork said. “Turnover means we’re losing native species and having those species replaced by new non-native species, or by nothing in some cases. So that means roughly on average, one in three species is likely to disappear and be replaced by something new and different. That means a total reshuffling of our ecosystems.  This is an average. So it’s much higher in Alpine places and places that are more sensitive, and lower in other areas. But that’s a really significant number.”

Research by Dr. Peter Moyle and the Watershed Sciences Center shows about 82% of California native fish are highly vulnerable, so species like chinook salmon that absolutely require cold water to survive, are going to be hard-pressed to continue over that period, and 72% of listed bird species in California are at moderate or high vulnerability due to climate change, he said.

By 2070, we expect more than 50% of the ecosystems in California will be what we call novel ecosystems, which are ecosystems that don’t have any historical analogs and are made up of species that did not traditionally exist together in the wild,” Professor Bork said. “That’s something new, so maybe there’ll be some benefits to us, but we don’t really know. And we don’t really know what these ecosystems are going to look like.”

For further reading, Professor Bork recommended:

A path forward for California’s freshwater ecosystems, from Jeff Mount and the PPIC.  This report looks at the role Californians can have in guiding the transitions in the ecosystems as they occur over the next 50 to 100 years.  He also recommended the legal section in the appendix that lays out a vision for what could happen, focusing on the Water Board.

Governing Nature: Bambi Law in a Wall-e World:  This article, written by Professor Bork himself, looks at how we adopt our legal systems that are predicated on a view of the world a lot like what we saw in the Disney movie Bambi to a world that’s going to be more like the world that we see in Wall-e.

Looking at these problems, it’s easy to get overwhelmed, so it’s really important to focus on what we’re doing and what we can do as we’re faced with this really tough climate change problem,” he said. “John Holdren, Barack Obama’s senior advisor on science and technology, gave a great speech in 2007, saying that we really have three choices in dealing with climate change: mitigation, adaptation, and suffering, and we’re going to have to do all three of those.  Mitigation means our efforts to keep climate change from happening – to slow down the rate of climate change to reduce our emissions of greenhouse gases. Adaptation means adapting what we do and adapting our ecosystems to better deal with the climate change that we know is coming. And there’s going to be suffering.   So this is the mix we’re looking at: the more mitigation we do, the less adaptation and suffering; the better job we do of adaptation, the less suffering there will be. This is why I’m so glad that we are focused today on adaptation.”

The adaptation work is important because it is still undeveloped, he said, noting that we’d still have to do the adaptation work even if we stopped all of our emissions right now.  Even so, we’ve already committed to significant climate change based on the greenhouse gases that are in our atmosphere right now. It’s a big atmospheric ship that we’re driving, and it takes a long time to turn that ship around, so we need to focus on adaptation.

The upside is that I am guardedly optimistic, at least on the questions of water allocation and how we do that,” Professor Bork said. “We have this legal framework that gives us the power to adapt; we might need to adjust the amount of water rights or the timing of seasonal water rights or find better ways to justly allocate water during a drought. There are a lot of changes we’re going to have to make. More than any other area of law that I’ve studied, California Water law has this remarkable ability to adapt.  If we look back at the history of California water, it’s marked by development after development after development.”

We can adapt, we have adapted, and we will continue to adapt in the future, and a lot of that adaptation comes out of the Water Board,” he said. “The water board is given great power and great flexibility by the state and by the Constitution to implement a vision of water and California, and that vision I think will change in the future, but the state board will be central to that change.”

LAUREL FIRESTONE: Bringing equity into our climate change adaptation

Laurel Firestone is one of the newest members of the State Water Resources Control Board.  She was appointed by Governor Gavin Newsom in February of 2019. Before joining the Board, she co-founded and co-directed the Community Water Center for over a decade, an environmental justice organization based in California’s Central Valley and Central Coast.  Ms. Firestone is very passionate about ensuring that all Californians have access to safe, clean, and affordable drinking water and to building increased diversity, equity, and inclusivity into water decision-making in support of that goal of providing safe, clean, and affordable drinking water for all Californians.

Water in California flows towards money and power,” began Ms. Firestone. “I would go even farther to say that water is power. Water shapes every aspect of our lives. It’s very intimate; we bring it into our homes and into our bodies. It nourishes everyone that we love. It’s one of the most powerful drivers in our ability to create wealth, to build economic development, and to grow food. And it can be destructive with floods and sea level rise. It can be fun and soul lifting, giving us something to play in and something to enjoy, and really connecting us to the power of the natural world that we’re also a part of.”

Water, like property and wealth, is a clear manifestation of the values in our society. And so the reality is that access to water or lack thereof really reflects the fundamental challenges and way we value things in our country and our state,” she continued. “So as I think about the work around water justice, and how we work on water in California, it’s a way of really concretely working through some of these broader issues, like structural racism, climate change, and the widening wealth and income disparities, that can otherwise feel abstract and overwhelming.”

Ms. Firestone noted that California has lots of challenges already. There are tremendous inequality and disproportionate impacts in a state where a million Californians don’t have access to safe water in their homes and their schools.  We have drastically depleted our natural water sources from overpumping groundwater, to towns going dry and sinking, to fully dewatered streams. We have a highly engineered water conveyance system with intricate and complex operations to manage California’s hydrology’s natural volatility in the state.

All of those things are challenges already, and now with climate change, there is added pressure and volatility on top of that.  She noted that temperatures are already dramatically warming with two degrees of warming already occurring over the last 100 years, with drastic increases of up to 8.5 degrees over the next century.

This isn’t going to be experienced equally, just like everything,” said Ms. Firestone. “In California, the more interior regions and the inland areas are expected to experience greater warming than coastal areas. We will see a lot less snowpack, just due to the warming; we expect to see less snow in lower and intermediate elevations.  Even if there’s the same amount of precipitation falling, Sierra snowpack may shrink by half of the historical range by the end of the century. And we can expect to have even some years with zero snow.”

California’s naturally cyclic hydrology will become even more volatile, with the wet season expected to be wetter but shorter, and dry seasons expected to be longer and drier.  This shift in volume, seasonality, and the timing of when water flows will have huge impacts, especially given that the state’s highly engineered and operated water conveyance system is designed for different hydrology than how climate change is developing in the state.

The impacts are real and disproportionately impacting frontline communities

These impacts of climate change in our water in California will disproportionately impact frontline communities in both direct and less visible ways,” said Ms. Firestone. “So today, we’re reeling from the pandemic, from fires, from racial violence and injustice, and from really polarized political institutions in ways that feel visibly and personally concrete in our daily lives more than ever before. And it’s clear that our existing disparities and the exacerbating effect that climate change already is and will have will result in loss of lives, in huge economic costs, and human suffering.”

Coastal California is already experiencing the early impacts of rising sea levels, including more extensive coastal flooding during storms, periodic tidal flooding, and increased coastal erosion.  There are many disproportionate impacts from all these severe changes that are happening that most of us don’t see.

In communities like Bayview Hunters Point, which has a predominantly black and Asian American population and low income, sea level rise will result not only in flooding into parts of the neighborhood, but also potentially to increase neighborhood exposure to many toxic pollutants as contaminated sites are flooded,” said Ms. Firestone.

In communities like East Porterville, during the last drought, there were devastating impacts and water supply hydrological changes. I worked with some of the thousands of residents whose wells went dry and had to buy bottled water, use emergency bathrooms and showers in church parking lots, and whose houses still have to rely on these emergency tanks years after the drought officially ending.”

Algal blooms are becoming more frequent and widespread; these harmful algal blooms can pose a health risk to people and animals, harm aquatic ecosystems, limit the use of drinking water and recreational water bodies due to toxins, odors, and the mats that they can produce,” Ms. Firestone continued. “It’s especially dangerous for unhoused individuals and the homeless folks who live near polluted waterways. We’ve seen these increasing severe and becoming chronic impacts in communities around the Klamath River, Clear Lake watershed, Central Coast, Central Valley, and Inland Empire and impacting tribes and other communities of color especially hard.”

The recent record wildfire season has resulted in the loss of homes and lives, as well as severe and sustained extreme air pollution, which disproportionately impacted low-income workers. “Last year, we had the largest and most devastating wildfire season with more than 4 million acres and over 9000 fires, and through that, we saw low wage workers, particularly farmworkers, construction workers, gardeners continued to work without protective equipment in hazardous air quality levels because they couldn’t afford to miss a day of work.”

However, within these challenges are many examples of people and groups and agencies working together to shift this reality and build the kind of community that we want and need to be, she said. There isn’t a magic bullet here; building resiliency and combating these inequities will take work in every aspect of water use in our state.

What can we do to mitigate, adapt and build resilience?

Ms. Firestone then highlighted some of the programs underway at the State Water Board to address climate change and equity.

Water’s role in reducing greenhouse gas emissions

With 19% of California’s electricity consumption going towards water-related applications, this is something we all need to work towards.  As we reduce our water use, we can see reduced carbon emissions.  And with 15% of California’s electricity coming from hydropower, water definitely has a role to play.  Ms. Firestone highlighted two areas in particular:

The water-energy nexus: The water-energy nexus reduces demand for electricity through water conservation and recognizes and plans for the decrease in hydropower that we expect to see because of these hydrological changes. “In particular, one of the most important things we can do to reduce the demand for electricity and build resilience to drought and climate change is increasing long-term water conservation and water use efficiency. There’s recent state legislation that we are part of helping to implement that’s focused on using water more wisely, eliminating waste, strengthening local drought resilience, and improving both agricultural and urban water use efficiency standards and practices.”

Reducing methane emissions: The Water Board is looking at how to better use and divert organic solid waste to create more benefits and reduce methane emissions by increasing diversion to compost and working with wastewater agencies to develop biogas sources.

Stormwater

Stormwater capture, treatment, and management, especially using green infrastructure, is an important strategy for adaptation, building resilience, and even supporting some carbon sequestration. “At the water board, we supported this work both through high-level planning and regulatory efforts as well as about $90 million in grants that we’ve put out so far through our Strategy To Optimize Resource Management of Stormwater (or STORMS), but really, the work around us is on the ground.  Local and regional stormwater management is going on and can produce multiple benefits, including reduced or attenuated flooding, groundwater recharge, ecosystem restoration, and urban greening, and implementing low impact development strategies. There’s some great work going on in LA around targeting low income, communities of color and in urban areas in LA.”

Water recycling

The water board has encouraged water recycling through both a new water recycling policy and about a billion dollars in construction grants and loans for water recycling projects. “We set this ambitious goal to get to 2.5 million acre-feet a year of recycled water in the next decade.  This is a big part of making sure that we’re even more effectively using our water resources to meet multiple beneficial needs, especially as water becomes more restricted and ends up and difficult to access in the context of climate change.”

Water rights administration

The State Water Board administers the state’s water rights system, which includes tens of thousands of water rights holders. “To increase California’s water systems functions, especially in the face of climate change, we need to address potential challenges and harness what we think are opportunities within climate change to improve some of the problems we already have in our water rights administration system. There have been extensive efforts to identify lessons learned from the last drought and undertake legal, administrative, and technical improvements to better administer our water rights system in periods of shortage. Some of the many efforts identified include establishing water availability and curtailment methods for droughts and establishing approaches to managing instream flows, particularly in priority drought vulnerable watersheds, including voluntary approaches.  As past conditions are no longer a reliable guide for future conditions, the Board has been developing options to make sure that as part of the water rights permitting analysis, there’s a robust examination of climate change impacts to support applications in developing projects that will still remain feasible in the future.”

Groundwater recharge

Especially with a dwindling snowpack, California will need additional capacity to store water.  Groundwater aquifers present one of the vital storage resources and a flexible storage resource for liquid water. The Department of Water Resources has led the Flood Managed Aquifer Recharge or Flood MAR, but the State Water Board has a role to play and is working to streamline permitting to allow for conjunctive use of groundwater storage.  The Board is also engaged in helping to assess how to incorporate water quality protection into the more dispersed manage aquifer restoration projects.

Bringing equity into our response

These are some of the many strategies that are needed to rise to the occasion of a changing climate, but also in each of our actions, programs, and projects, we need to intentionally bring equity into our goals and strategies,” Ms. Firestone said. “So what does that mean? It means we examine disproportionate impacts in ongoing actions and programs. And to do that effectively, we need to meaningfully engage and collaborate transparently with impacted communities, and that can allow us to proactively plan and prepare for emergencies with vulnerable communities.  We need to prioritize proactive investments in environmental justice and frontline communities in a way that both addresses harms, and can provide some safety net and build resilience as we go forward.”

As the implementation of the Sustainable Groundwater Management Act (or SGMA) continues, we need to work through how to manage groundwater sustainably, especially in the most critically overdrafted basins, she said.

We should be deliberately looking at what are the impacts of groundwater management on our most vulnerable communities, and what is the opportunity to approach this work to avoid further impacts and build resilience in our communities,” said Ms. Firestone.

She pointed out that the most critically overdrafted basins are in the San Joaquin Valley, and 95% of the community water drinking water systems in the San Joaquin Valley rely on groundwater as their primary source of drinking water. Many of the most vulnerable communities aren’t even part of community water systems and rely on shallow domestic wells. Even most community water systems are very small and often rely on only one or two wells for their entire community water supply.

A study was done of the Groundwater Sustainability Plans submitted for the critically overdrafted basins in parts of the San Joaquin Valley, which considered the impact on drinking water for both domestic wells and small community water systems and the plans’ thresholds for sustainability.

This allows us to first fully understand the impacts, and through meaningful engagement with impacted communities, be able to build collaborations on what might be an effective mitigation and adaptation strategies.  We need to plan to avoid these impacts but also consider droughts and ongoing stresses.  We need to target and proactively invest in mitigation projects that can address those needs to make sure communities don’t end up without drinking water or no water supply at all. We need to build long term resiliency.

Ms. Firestone said the biggest example of how to build equity and resilience in the face of climate change is the new Safe and Affordable Funding for Equity and Resilience Program or SAFER program at the water board.  The goal of the program is to ensure that every Californian has access to safe drinking water and achieve the state’s policy of the human right to water.  Senate Bill 200 set up funding of $130 million per year focused on providing safe drinking water.

We’ve pulled together all of our resources, not just in that particular funding source, but all of our drinking water funding sources, so we have a lot for capital projects beyond $130 million,” she said. “Our work within our Division of Drinking Water, expanding our Office of Public Participation, and establishing an advisory group is helping us develop the way that we’re implementing this program.”

The State Water Board is trying to build meaningful engagement into how we do this work,” she continued. “First, the advisory committee is primarily impacted residents, but also local water systems, technical assistance providers, and local jurisdictions so we can have really robust and diverse stakeholder discussions about how to best use the resources to best achieve these goals.  We also have community engagement methods, processes, and practices built into much of the work that we are funding that we’re doing through Division of Drinking water’s implementation tools.

The SAFER program includes an annual needs assessment that allows the Board to look at who doesn’t have safe drinking water, who is at risk of not having safe drinking water, and what the cost might be. “Those costs need to include not just looking at how to get people safe drinking water now, but also how to build that resilience into the future. So that’s something we’re working towards making sure that as we invest these funds, we are helping communities connect to other communities, have backup sources, and have the kind of infrastructure we need, given this changing climate that we’re in.”

Finally, Ms. Firestone noted that the current pandemic and some of the immediate ways that the pandemic has manifested in the water sector that has exacerbated existing inequalities.

Much like the drought, we’re really in an unprecedented emergency that is resulting in severe threats to drinking water access in the state,” she said. “So the water board has just taken on a survey looking at the economic impacts of what this means for both households and household debt, as well as drinking water systems and ability to operate and financial capacity. What we’ve seen from that and what we’ve learned is that there is already about a billion dollars in household debt that has built up over the last year or from drinking water bills that folks who have not been able to pay.  Of that, most of that is drinking water-specific debt. But there’s also a recognition that there are other charges that can be for wastewater or stormwater on drinking water bills. And in some cases, when you have joint agencies, you even have energy bills on the same bill as water bills.”

We have also seen that individual small water systems where most of the customers or a significant number haven’t been able to pay their water bills are seeing really severe financial risks to their ability to operate,” she continued. “Just in the survey that we looked at, within the next few months, we are looking at some systems being in real financial crisis.  We looked at the zip codes of where this is occurring and found, not surprisingly, that there are really clear racial and economic disparities. And so we see higher percentages in black and Hispanic households in terms of both the percentage of households that have debt and the level of that debt. And this is true, even when you normalize for or factor in economic levels.

In conclusion …

So there are going to be more challenges in the future.  Part of what climate change does is allow us to see problems that have been there all along, such as drinking water affordability, rising to crisis levels, and finding ways to improve our system to address these issues.

In particular, affordability is something that we are really going to have to grapple with in the future, not just because of existing inequality or because of these financial crises, but also because of climate change,” Ms. Firestone said. “Because it’s going to require a lot more money and investment, and climate change is just going to exacerbate that.”

I want to end by saying that this Governor and those in his administration have from the very beginning of week one of taking office and focused on our responsibility to make sure we’re building a California that works for all,” she said. “This doesn’t just happen with a new logo; this happens by hard and deliberate work at really every level of our government, and most importantly, leadership at the local level to drive and guide and implement that promise. That opportunity is now, and it’s going to take all of us. I look forward to working together to live up to this promise of a California for all.”

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