Lake Oroville, September 8, 2015, at 1,057,971 acre feet, 30% of total capacity. Photo by Florence Low / DWR

STATE WATER BOARD: Climate change and water rights permitting

Report presents staff recommendations for incorporating climate change into water rights permitting

California’s climate is changing rapidly, and historical data are quickly becoming no longer reliable for forecasting future conditions. Models indicate that in the coming years, California will see less of its precipitation fall as snow and more as rain, with the wet season projected to become wetter and shorter and the dry season longer and drier.

Anyone wanting to divert water from a lake, river, stream, or creek for beneficial use requires some type of water right.  As part of the application to divert surface water, the parties must submit a permitting water availability analysis that demonstrates a likelihood of unappropriated water available to fulfill the permit.

Generally, such analyses are calculated by estimating the amount of unimpaired flow in a stream during the diversion season and subtracting the demand of senior diversions and instream needs.  These analyses are often based on historical datasets; however, not all waterways are gauged, and many of those that are may not have sufficiently long records to capture the full range of hydrologic variability.  In addition, rising temperatures and changing precipitation patterns will affect hydrology, making future water availability increasingly difficult to estimate reliably.  Getting the water availability analysis right is essential because once an application is filed, the proposed season of diversion, rate, and quantity requested may not be increased.

Recognizing that the implications to California’s water resources due to climate change are significant, the State Water Board in 2017 adopted a resolution directing staff to ‘identify data needs, and evaluate and make recommendations on regulatory and policy changes regarding the use of models to account for projected impacts of climate change when conducting water availability analyses and shortage analyses.’

Additionally, the Newsom administration’s 2020 Water Resilience Portfolio outlines a vision of water management that would support long-term water resilience and ecosystem health. Among the recommendations are to strengthen regional preparedness are planning for a range of climate and growth scenarios and incorporating climate change forecasts into permitting processes.

Overview of the Water Rights Response to Climate Change Report

The State Water Board staff has prepared the report, Water Rights Response to Climate Change, which presents their recommendations to make permitting water availability analysis more robust and actions for an effective response to climate change within the existing water rights framework in California.

At the February 16 meeting of the State Water Board, Amanda Montgomery, Environmental Program Manager, and Jelena Hartman, Senior Scientist, presented the staff’s recommendations to the Board.  Ms. Montgomery noted that the presentation is primarily focused on permitting new water rights projects, with the question of how to plan and use the changes in hydrology to get to a more resilient future.  The staff report recommendations offer a suite of options for moving forward.

The Water Rights Response to Climate Change Report provides an overview of California’s water rights system and general principles of water availability analysis for water right permitting. The report then summarizes existing information on projected climate change impacts on California’s water resources. It discusses potential challenges and opportunities that climate change poses for administering the water rights system. Finally, the report identifies a range of approaches to respond, individually or in combination, to climate change, including how existing information and available data can inform water rights permitting processes and aid applicants in selecting an appropriate season, rate, and quantity of proposed diversions. Staff recommendations in this report offer a menu of options to make water rights permitting analysis more robust and to support applicants in developing projects that will remain feasible in the future.

There are two types of analyses  mentioned in the 2017 resolution:

Water availability analysis: The first is looking at the water availability analysis during permitting and asking if, after accounting for existing senior water rights, pending water rights, and environmental needs, is there sufficient water available for a new appropriation?  There is a potential that this availability can be affected by climate change.

Shortage analysis: The second part is the shortage analysis, which takes a narrower look and asking if there is sufficient water availability in the immediate term to cover the existing demand.

The staff report on climate change focuses on the former, this permitting aspect of water availability analysis, Ms. Hartman said.

When we talk about permitting in water rights, a permit is really an authorization to develop a water diversion and use project,” she said. “In determining whether to issue permits, the Board has to make a finding that there is unappropriated water to supply the applicant after accounting for those demands for senior water rights and environmental needs.  This finding is made by relying on the information that we developed during application processing.  The permit will have important pieces, such as priority date, but also specified is the quantity and rate of diversion, the season of diversion, how and where the water will be taken and used.  Then reporting, monitoring and other terms and conditions, such as terms to protect instream flow resources.

Ms. Hartman presented a list of items that are developed during the permitting process, noting that virtually all of them have the potential to be affected by climate change because how and when California gets the water will change.  However, she said that by considering these components before the application is submitted, the long-term feasibility of projects supported by the water right is improved, and terms and conditions that provide continued protection of environmental needs can be ensured.

The 2017 resolution which directed the Division to do this work specified identifying data needs and approaches to incorporate climate change into water availability analysis, but for completeness, other actions related to water rights and climate change are included to have a suite of actions in one place that would broadly support an effective response to climate change.

The report provides a brief water rights overview, background on permitting water availability analysis, reviews some climate change and California water resources issues, details the challenges and opportunities in managing for the future, and concludes with staff recommendations.

We sought to catch all the big issues within the existing water rights framework in California that we can look at and assess what it is that we can do,” said Ms. Hartman. “So we encourage people to read the report, but today we’ll go straight to recommendations.”

The report’s recommendations

There are 12 recommendations in the report; they are a menu of options for Board members to choose from because they all can’t be done at once, she noted, and additional stakeholder engagement would be required to implement most of them.  There’s a range in complexity and workload, with some being relatively straightforward, others more complex, requiring scoping and quite a bit of work, and others are already underway.

The twelve staff recommendations are organized into three themes:  Account for climate change in permitting and water availability analyses, improving water availability evaluation, and continuing planning and coordination.

Accounting for climate change in permitting

Starting with the permitting, the first four recommendations directly address how to incorporate climate change within the permitting.  “We can generally implement these types of improvements to analysis within our existing authorities by applying them on a case by case basis,” said Ms. Hartman.

1. Require applicants to use existing climate change data in permitting water availability analysis, much like scenario planning where we’re adding that to whatever we would get by looking at historical data, she said.

2. Base the complexity of the required analysis based on some project characteristics, such as larger projects, or in locations that are more susceptible to impacts of climate change, or on type of beneficial use. The Board could take a nuanced approach, such as smaller projects passing at the screening level, while larger, more complex projects would require more nuanced and sophisticated analysis.

3. Include adaptive permit terms in new permits, especially for projects which may have relied on climate change data to develop aspects of that project. Those permanent terms could include triggers when something comes into effect or triggered by drought proclamations or other things.  Ms. Hartman said that permit terms should be adaptive so that they can respond to observed hydrological changes.

4. The Board needs to consider ways to help applicants. One example is to prepare a fact sheet that explains how climate change can affect projects and why we would want applicants to consider this before they submit their application.  The key here is to start by, at the minimum, using readily available data:

The Department of Water Resources provides data, tools, and guidance to Groundwater Sustainability Agencies to support the implementation of the Sustainable Groundwater Management Act (or SGMA), with many downloadable datasets.

The CalAdapt platform was developed by UC Berkeley with oversight and funding from the California Energy Commission and California Strategic Growth Council.  The website offers interactive tools to explore climate change impacts at a particular location and data downloads developed from the fourth climate change assessment.

As a starting point, what we see is that a party applying for water rights might be able to use some of these data and include those climate change data in their application without having to run complicated models, or develop additional data and information independently on their own,” said Ms. Hartman. “So we would like at the minimum for applicants to rely on these data that were developed by the state.  In some watersheds, more sophisticated applicants might have their own modeling and access to other resources. But generally looking at these proposed actions related to permitting, we recognized early on, we should simply get started.”

Ms. Hartman also noted that there is a webpage at the water board website with water rights and climate change information, links to data sources, staff reports, and a fact sheet about why climate change is important and should be considered before applying.  The webpage also has additional information that might help select an appropriate season, rate, and quantity of proposed diversion to improve the long-term feasibility of these projects that would rely on the water right.

Improve the water availability evaluation

The next five recommendations deal with improving water availability evaluation, which relates to data.

5.  Strengthen the minimum period of record requirement for streamflow data

6. Require more rigorous methods to extrapolate data to similar geographic areas

7. Expand existing network of stream and precipitation gages

8. Reevaluate the Existing Instream Flow Metrics and Criteria

9. Revise the Fully Appropriated Stream (FAS) List

Ms. Hartman noted that there are several issues related to data, both gaps and challenges, and generally improving and strengthening the water availability analysis would position the Board to understand better what’s going on, regardless of climate change.

Estimating the supply and demand can be quite challenging, and it’s a necessary part of demonstrating that there is unappropriated water available for a new appropriation,” she said. “If we look at why characterizing supply and demand can be challenging, it can help explain and provide context for some of these recommendations.”

The typical water availability analysis is based on the observed records to estimate supply; however, statewide, only a small fraction of the state’s significant waterways are well gauged, Ms. Hartman said. “So when we have an applicant at a location, maybe they don’t have a gauge, or maybe the entire stream system is not really gauged, or maybe there used to be a gauge there, and so we have a very short period of records for several years when the gauge was there,” she said. “So when we’re trying to estimate water availability, we often have to rely either on a nearby stream or a downstream gauge or a short record.”

Sometimes these patchwork approaches are not sufficiently comprehensive to capture the full range of hydrologic variability that exists. Then, there are the rising temperatures and changing hydrology due to climate change that will make future availability even more difficult to estimate reliably.

The other crucial component of the demand analysis are instream needs.  Ms. Hartman pointed out that even if an applicant can show that there is unappropriated water after accounting for senior diversions, there may not be water available for appropriation if there are impacts to fish or riparian resources.  Adding to the complexity is that only limited areas In California actually have established instream flow standards that help with this part of the analysis.

Planning and coordination

The final three recommendations fall under the category of continuing planning and coordination:

10. Prepare for and Capitalize on Capturing Flood Flows and Storing them Underground: The Board has also been working on capturing the high winter flows.  Staff has issued guidance on water rights permitting of beneficial uses related to the groundwater recharge, developed temporary permits which allow for diversion and use of available high flows not yet been claimed by water rights holders, and a streamlined permitting pathway for standard permits that are also looking at diverting those high winter flows and flood flows and storing them underground.

11. Plan for droughts: There are several efforts underway at the State Water Board to prepare for a drought.  “This is a critical piece because with warming temperatures, and changing hydrology, and the changing climate, we do have our challenges cut out for us, and we will never be able to make the drought not come,” said Ms. Hartman. “But we know that droughts are coming; it shouldn’t be an emergency.  It is always going to feel uncomfortable when we are in a drought. But we can plan and prepare, and then we can, in a more resilient way, weather that drought episode.”

12. Coordinate with Other Agencies and Partners:  Ms. Hartman noted that there are already active collaborations between agencies to leverage the ongoing studies and research that the Department of Water Resources and others are doing to prepare for flood management in the Central Valley and implementation of Flood MAR.  “This recommendation to coordinate has the potential to strengthen everything we do,” she said. “We can partner on research on tools, perhaps a tool that helps with water availability analysis, funding innovation, voluntary solutions – there’s a lot of people who are focusing their energies in helping to inform the work of the Board. And coordination and collaboration have challenges of their own. But they are key in making that sustained progress and achieving some of the more lasting outcomes. Sometimes it’s troublesome, but it’s worth it because it really does set us on this path of buy-in and more collaborative solutions.”

Next steps

The report is posted on the State Water Board website, and public comments should be submitted by March 10.  Outreach is planned to main consultants who do the bulk of the work.  Staff has been working with the pending applicants to encourage them to include climate change in evaluating their applications.

Ms. Hartman concluded by presenting a slide with all 12 recommendations, describing it as a menu of options for the Board to consider.  (Note: this is an informational item only.  The Board took no direct action.)

DISCUSSION HIGHLIGHTS

During the discussion period, the Board’s available resources and backlog were on board members’ minds.  Board member Sean Maguire notes that some of these recommendations are large undertakings that would take significant resources, so prioritizing the recommendations in the next iteration of the report would be helpful.

Board member DeDe D’Adamo echoed the concerns. “We have quite a big backlog already, and it’s already challenging to get through the system. With SGMA and our increased focus on regional self-sufficiency and being able to pick up additional flows during peak periods … Of course, we’re supposed to be implementing climate change analysis in everything that we do. And so that’s an important goal as well. How can we move forward with both, also looking at with new permits, public trust, and some of the things that we didn’t do in the past?  How do we incorporate all of this and still be able to be nimble and move? Maybe not quickly, but with, you know, deliberate speed.  I am anxious to hear from stakeholders on this one.”

Board member Laurel Firestone asked staff to highlight what things they are already working on and what their thoughts were.

Ms. Hartman noted that the work preparing for floods and prioritizing permitting of high flows is something they have been working on with the agencies, so this work is underway.

When we look at these first four recommendations that are including climate change considerations into permitting water availability analysis, that is the idea to support applicants in thinking about their project and embedding that ability to remain climate-resilient into the project itself before they submit an application,” Ms. Hartman said. “Once an applicant submits an application, there is no way to increase the season or the amount of diversion, so we want to make sure that we work with applicants ahead of time.  This part is meant to work with applicants to come up with stronger projects.”

More outreach is planned, especially to the three main consultants who represent about 40% of all water rights applicants.  They might also hold a webinar to discuss the report in further detail.

However, the majority of our applications are for relatively small amounts of water,” said Ms. Hartman. “These are regular people who are not following State Water Board meetings, and maybe are not going to read this report, and so their first contact with the water rights process at the Board might be through the appropriative water right filing.  So to reach out to those, we plan to include information about climate change in our online application form.”

We are also working with applicants, one on one case by case basis. That’s the best we can do to actually support those smaller applicants. But we would probably want to start with larger applications who have more wherewithal and more resources available. Then those can probably serve as examples also how to go about doing some of this work.

Board member Tam Dudoc said she sees a parallel between this effort and the cost of compliance effort that the Board started 10-12 years ago.  “The idea was that while certainly looking at cost, it should not hamper our ability and our responsibility to protect water quality and do the things we have to do.  Likewise, looking at the impacts of climate change should not impede our work on water rights but enhance, supplement, and aid it, because knowledge is power, and knowledge will allow us to manage and implement the water rights program in a much more hopefully efficient and better manner as we go forward.”

Board member Dudoc acknowledged it’s not an easy task, and there is much work to be done. “But the fact that we are starting to integrate consideration of climate change into water rights permitting is a very good step, similar to the way that 12 years ago, we wanted to start thinking about the cost of compliance and how that might inform our decision-making process going forward.  I have to do a shout-out to former board member and Vice-Chair France Spivy-Weber, who championed the climate change resolution, which led to this effort and the entire issue of looking forward and considering climate change in all of our activities.”

During public comment, Dante Nomellini, Central Delta Water Agency, said, “With regard to the application for permits, one of the difficulties that exist is for watershed of origin applicants to exercise their priority with regard to taking water back from the various projects, the two, in particular, the Central Valley Project and the State Water Project. And the term 91 is a feature that obstructs that process. And although it was heralded as some type of real benefit, the problem with term 91 is that if one acre-foot of water is being released by either the Central Valley Project or the State Water Project to maintain their obligated water quality standards, that means no other water is available that is produced by natural flow. So you will see in some years, there’s ample natural flow over and above what’s being extra released by the projects that should be available for watershed of origin priorities to be exercised to achieve a permit. And I would hope that the look at climate change would incorporate a look at some of the defects in the process. … ”

Chair Joaquin Esquivel closed the agenda item by acknowledging that there’s a lot of work to be done to prepare for droughts and climate change adaptation, and it can seem overwhelming. “But I think there is a lot of great groundwork, and a good commitment ultimately, to making sure that the water rights system is going to adapt and it’s going to be here for us when we need it most. And it’s not going to if we don’t resource it or have the difficult discussions there.

Click here to visit the State Water Board’s page on water rights and climate change.

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