Dusk falls on the B.F. Sisk San Luis Dam and the San Luis Reservoir. The water level on 8/24/2016 was recorded at 13% of capacity.

KERN COUNTY WATER SUMMIT: Two perspectives on the State Water Board report, Recommendations for an Effective Water Rights Response to Climate Change

State Water Board’s Erik Ekdahl discusses the climate change report; Attorney Valerie Kincaid explains why existing water right holders are concerned

Earlier this year, the State Water Resources Control Board released a report, Recommendations for an Effective Water Rights Response to Climate Change, that considered how the State Wate Board could include climate change when considering new water right applications.  Since the report’s release, it has been the subject of much discussion and has sparked concerns amongst existing water right holders. 

At the Kern County Water Summit, hosted by the Water Association of Kern County, a panel addressed the topic.  Erik Ekdahl with the State Water Board first gave an overview of the report and its recommendations.  Next, attorney Valerie Kincaid discussed the report from the perspective of existing water right holders.

Background for the report

Erik Ekdahl is the Deputy Director for the State Water Board’s Division of Water Rights. The Division is responsible for establishing and maintaining a stable system of water rights to develop, conserve, and use the state’s water resources while protecting the vested rights, water quality, and the environment. Erik joined the State Water Board in 2008, where he focused on nitrate and groundwater contamination. He has worked in the Board’s Division of Financial Assistance, Division of Water Quality, and as Director for the Board’s Office of Research, Planning and Performance, which is responsible for developing and implementing the Board’s requirements under the Sustainable Groundwater Management Act.

Before delving into the Board’s report on water rights and climate change, Mr. Ekdahl first discussed the background and context for the report. 

California is no stranger to drought.  The graph shows the long-term history of California’s precipitation; bars above the centerline are wet years; the bars below are dry years.  He pointed out the lowest bar by far was the 2014-15 drought years, which was probably the worst drought in 500-1300 years, according to tree rings and other paleoclimate reconstructions.

It was very hot, it lasted over multiple years – three years at least, and it was very dry,” said Mr. Ekdahl.  “Within the context of California often oscillating between dry years and wet years, there are some additional considerations that we need to take into account, such as what climate change means for how frequently these oscillations occur, how deep and severe they occur, and what it means for our water supply.”

But it’s not purely about precipitation or temperature, he said.  California’s population has grown considerably over the last 50 years, as shown on the graph.  The green arrow indicates when Oroville Dam was completed in 1968, which was the last large piece of the State Water Project constructed that, together with the Central Valley Project and countless local projects, creates the plumbing that moves water around California today.  There are now 20 million more people who place demands on water and where that water goes, as well as significant land use changes. 

Patterns of agricultural use, urban planning, and housing have all significantly changed over the last 50 years,” said Mr. Ekdhal.  “Long story short, our plumbing is not necessarily engineered in the way needed to accommodate this new land use reality, this new population reality, and the new reality that climate change is going to affect the precipitation patterns, temperature, our reservoirs, and how we manage them.

Climate change projections and models all indicate four things for California specifically:

Condensed wet season: There may be differences in when precipitation occurs, although the total volume of water over the long term might not actually be all that different than now.   The precipitation will be more concentrated, coming during a shortened wet season.  The wet seasons, when they occur, will be wetter.

Longer dry season:  Droughts will be more frequent, more prolonged, and hotter. 

Diminished snowpack:  More precipitation will fall in the form of heavy rain and may occur at higher elevations than historically.

Changing runoff patterns:  As the wet season contracts, runoff patterns change.  This year, the April 1st snow survey found the snowpack at 60-70% of average, which isn’t that bad; however, in the subsequent three and a half weeks, the snowpack dove from 65% to about 5% of average.  “There are tremendous repercussions to that in terms of how our reservoirs filled,” said Mr. Ekdahl.  “In this case, they did not fill – that water didn’t appear in the state’s reservoirs. We were expecting kind of a nice snowmelt pulse to refill a lot of the northern reservoirs in particular; that just didn’t occur. We don’t know where the water went – did it go into the atmosphere? Did it go into the ground?  I think that’s going to be the subject of some significant study in the near future.  That reflects this change in snowpack and change in runoff patterns that climate change forecasts have anticipated, and that we see in reality.”

On the heels of the last drought, the State Water Board adopted a climate change resolution in 2017 the directed several actions for the divisions and offices with the Board.  Specific to the Division of Water Rights, it directed staff to identify and evaluate data needs, 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. 

In response, the Division of Water Rights developed the report, Recommendations for an Effective Water Rights Response to Climate Change, which includes a high-level overview of water rights, an overview of water availability analysis as related to permitting of new water rights, a discussion of climate change and water, and staff recommendations.  The report was presented as an informational item to the Board in February; about 68 comments were received during the public comment period.

The report’s recommendations

There are 12 staff recommendations in the report.  Mr. Ekdahl noted that these recommendations are preliminary; stakeholders, the public, and the Board may have additional elements to include over time.  The recommendations present a menu of options: some of the recommendations are easier to implement than others which are complex and will take years or even decades to integrate fully.  Some are already underway.

The 12 recommendations are categorized into three themes:  accounting for climate change in permitting, specifically for new water rights applications; improving how water availability is evaluated, which is important for protecting senior rights; and continuing planning and coordination.

Mr. Ekdahl encouraged folks to read the report; it’s written simply and meant to be understandable and readable. “I think it’s the right mix of providing information that relies on information that is provided by other entities, such as the Department of Water Resources and California Energy Commission, amongst others, and discusses climate change and California water rights.”

Recommendations to Account for Climate Change in New Water Right Applications

Turning to the first category of recommendations for accounting for climate change, Mr. Ekdahl emphasized that these are specific to new applications. 

We believe that we should require applicants to use existing climate change data in permitting in new applications going forward,” said Mr. Ekdahl.  “Note that we use the word existing; it’s far beyond the scope and scale of water right applicants to go out and run their own global climate circulation model, and then do the forecasting and water availability that would come from that. But there are some tools out there already that people can readily use that are already required for other state water planning activities.”

The recommendations to implement tiered requirements for climate change analysis and include adaptive terms in new permits are intertwined.  “We think we should consider adaptive terms in new permits that really help define when water is available and when it’s not, and maybe trigger at certain times versus others, but then also recognize that there may be the need to consider some tiered requirements,” he said.

Most of the new applications the Board receives are small, usually less than ten acre-feet per year, and most often associated with winery development on the North Coast.  “Is it reasonable to require a small, even domestic registration applications, to incorporate a full-scale climate change analysis? Probably not. Yet, the larger applications for tens or even hundreds of thousands of acre-feet – those may be appropriate to consider long term changes in these precipitation patterns, flow, and runoff.”

The fourth recommendation is to develop a fact sheet for water right applicants.  That has been completed and is available here: Climate Change Considerations for Appropriative Water Rights Applications.

As for existing climate change data, Mr. Ekdahl noted that they refer applicants to two sources:

The Department of Water Resources has developed some climate change information specific to SGMA and has asked their applicants to incorporate that as part of their groundwater sustainability Plans.  Mr. Ekdahl said they encourage folks to use the same data when considering a new water right application.

The Cal-Adapt website provides many details, information, and data on climate change forecasts for downscaled models, which generally have a finer resolution than the global scale models typically seen in climate change modeling.

Mr. Ekdahl noted that both sources are well-vetted, well documented and peer reviewed, and are readily available, so they encourage people to look at the data that comes out of this and use them as appropriate.

Recommendations to Improve Evaluations of Water Availability

Five recommendations address understanding better how water availability is evaluated.  

One of the recommendations is to strengthen the minimum period of record requirement for streamflow data.  Mr. Ekdahl noted that they often receive permit applications that only use the most recent ten years of data or a ten-year timeframe that isn’t necessarily reflective of current hydrologic conditions. 

We want to make sure that when looking at a water availability analysis, the right representative data is being used for the historical analysis of how much flow is in a system,” he said.

Another recommendation is to require more rigorous methods to extrapolate data to similar geographic areas.  Mr. Ekdahl indicated that this is nuanced and pointed more towards the North Coast region, where applications are often submitted for small diversions in ungauged tributaries.  It is unlikely to be a problem for applications in the Central Valley, where the streams are overall better gauged.

Another recommendation is to expand the existing network of stream gauges and precipitation data.  Mr. Ekdahl noted that SB 19 was passed a couple of years ago that initiated an effort by the Department of Water Resources, the State Water Board, and Department of Fish and Wildlife to assess the current stream gauge network and develop a plan that identifies significant gaps in the network and what is needed to meet the wide variety of water management needs.  This is becoming increasingly important in the face of a changing climate. 

There is a recommendation to reevaluate existing instant flow metrics and criteria to understand better what needs to be kept instream for senior right holders, fisheries, and other environmental needs.

Another recommendation is to revise the fully appropriated stream list where appropriate to recognize changing patterns in hydrology.  “If we do have wetter wets, there may be flood flows that are available for folks to capture and store underground that occurs in fully permitted stream systems, and we want to give people an opportunity to apply for that water if it is, in fact, actually there,” said Mr. Ekdahl.

Recommendations for Better Planning and Coordination 

The last set of recommendations focuses on long-term planning and coordination.  The two recommendations to capture flood flows and store them underground and plan for droughts are intertwined, Mr. Ekdahl said.

We need to prepare and capitalize for water when it’s there,” Mr. Ekdahl said.  “I’ve put a lot of this under the lens of drought, but the converse of planning for drought is planning for flood. And if we’re going to have the same amount of precipitation overall, but more focused in wetter periods separated by longer dry periods, we need to be ready to go when those wet periods occur.”

Mr. Ekdahl noted that they have estimated the water that went to Delta outflow during the 2014-2015 drought years between 3 and 5 million acre-feet, most of which was critically needed to maintain salinity control in the Delta for diversions and export.  During 2017, which was the wettest period on record in Northern California, they estimate between 40 and 50 million acre-feet went out through the Delta. 

We don’t really know what outflow is when the flows get that high because it’s really difficult to even kind of measure it and capture it and gauge it,” he said.  “The illustrative point is that when that water is there, it’s really there, and we need the ability to capture and put that water underground. There’s an immense storage capacity for underground storage, and capturing these flood flows is a real opportunity. Climate change points us in that direction already. And we need to plan for it.

Other Board actions to prepare for climate change 

Water Rights Drought Effort Review

Mr. Ekdahl noted that at the same meeting, another report was also presented as an informational item, titled Water Rights Drought Effort Review (or WARDER) report, which examined the Division’s response to the previous drought working with existing right holders. 

I want just to make it clear that this is two sets of the same effort,” he said.  “In one set, we need to look at, how do we approach this question in terms of new applications? Looking under the climate change report column, this affects future right holders, but it also affects those who already hold rights.  If we’re going to be giving out new permits and new applications, that water then has to be there. Otherwise, you’re taking it from a senior right holder.”

Underground storage for flood flows

The State Water Board recognizes that capturing surface water to recharge groundwater aquifers is essential for achieving groundwater sustainability and complying with the Sustainable Groundwater Management Act (SGMA); however, capturing flood flows in many cases will require a new appropriative water right.  So in recent years, the Board has developed new, streamlined permitting programs for groundwater recharge projects. 

There is more information about the permitting processes here: https://www.waterboards.ca.gov/waterrights/water_issues/programs/applications/groundwater_recharge/

In conclusion …

There are projected to be 50 million Californians by 2050, and on average, maybe five to as much as 15 degrees warmer in the 2050 to 2100 time period,” said Mr. Ekdahl.  “What that means is that we need to start planning for water supply.  You can see that the word ‘certainty’ is written underneath there, and I crossed it out and wrote resilience.  We can never be certain in terms of water supply. There’s going to be drought years; there’s going to be flood years. We need to be resilient in terms of how we respond to those flood and drought conditions.  That resilience, in turn, is going to translate into more certainty. But you can’t be certain in terms of how much it’s going to rain from year to year. We need to plan for that.”

Water right holders’ perspectives

Valerie is a partner at the firm of O’Laughlin and Paris LLP, whose practice focuses on water law, including water rights, water transfers, and water quality issues. She also handles environmental law issues related to the use of water resources, including state and federal endangered species law, habitat conservation planning, public trust issues, and state and federal environmental regulations. Ms. Kincaid represents various public irrigation districts, water districts, and water authorities in permitting, enforcement, and regulatory matters at both the administrative and judicial levels. Prior to specializing in California Water law, Ms. Kincaid specialized in mortgage derivative securities while practicing in Washington DC.  Ms. Kincaid is a graduate of Colgate University in Hamilton, New York, where she received her Bachelor of Arts degree in anthropology. She obtained her Juris Doctor from the American University School of Law in Washington DC in 2002. Miss Kincaid is a member of the California State Bar and the Sacramento Bar Association.

Valeria Kincaid noted that she represents mostly water districts, irrigation districts, and water rights holders, so she will discuss the water rights and climate change report from a water right holder’s perspective, which is a different perspective Board’s.

The following is what Ms. Kincaid has to say, in her own words, edited only for clarity.

I’m going to start with a common theme that the State Water Board, no doubt, is under immense pressure and has an increasingly difficult job,” said Ms. Kincaid.  “I will give a brief background of the State Water Board’s authority under the surface and groundwater systems. I won’t belabor that too long, but I’ll take a couple of minutes to explain that just because I think it feeds into so many of the implications of the climate change report that we’re talking about.”

Background on water rights and the State Water Board’s authority

Prior to 1914, the right to divert water was based on either land ownership if you were a riparian, or the actual diversion of water and putting that water to beneficial use, which would give you a pre-1914 appropriative water right. After 1914, the Water Commission, which was the predecessor of the State Water Resources Control Board, was established.  After that time, you could only divert water if you applied for a permit, so that’s when the permanent system came into place. And because of that, the State Water Resources Control Board has limited to no jurisdiction over pre-14 and riparian rights; they didn’t issue those rights. So they have a limit of what they can do to regulate those rights.

We also have this dual system in California where riparians are correlative water right holders.  That means during shortage, riparians share in the shortage; your right is correlative to the person who’s next door to you. So that is one set of shortage rights.  Appropriative water right holders, which are both pre-14 and post-14 diverters, have a totally different system of shortage which is ‘first in time, first in right.’ It’s our priority system. And that system is very harsh.  It goes in the order of priority; if you’re a senior water rights holder, you get your entire allotment of water before anyone else gets water behind you. So if you have a 1905 right, so long as it’s available, you can take all the water that you need before a 1906 right gets even a drop of water. So it’s a harsh system where it cuts off junior water right holders.

The State Water Board’s jurisdiction on groundwater came exactly 100 years after the permitting system for surface water came into place.  The California Legislature adopted SGMA, the Sustainable Groundwater Management Act, or SGMA.  The State Water Board has a very different role than it has with surface water. The Board doesn’t administer a permitting system; the legislature looked at SGMA and decided that they didn’t want to put a permitting system in, they didn’t want a similar top-down regulatory system.  Instead, SGMA really focuses on local control. So it gives the folks with land use and water authority in the basin the ability to come together and form groundwater sustainability agencies and manage groundwater at a local level.

In that arrangement, the State Water Resources Control Board does not permit groundwater, and it doesn’t permit storage in underground aquifers; instead, the Board acts as a backstop. So if folks violate SGMA or become unsustainable, the State Water Board is there as a backstop to take over in the scenario where people are not successful at the local level.”

All of that to say that the State Water Board has a very tough job.  You have this complex system that has surface water with riparian and appropriative rules that are very different. You have the State Water Board’s limited jurisdiction where it can regulate certain parties, but not others. So it has this limited toolset. And it has to manage this first system of priority where it cuts folks off, and they have increasing responsibility and increasing challenges. All of the increasing challenges of drought and increased population and land use are heavy upon the State Water Resources Control Board’s shoulders.

So in order to operate kind of in that system of increasing difficulty, the State Water Board has moved in the last ten years to take a more regulatory approach and figure out different ways to do business. And part of that is because all of those rules that are very complex are also laden with the need to respect the due process and the rights of water right holders. So the traditional rules of priority require a considerable amount of time and resources to get anything done at the State Water Board.  So, it seems like some State Water Board actions are going towards streamlining those rules or getting things done in a different way.

I think a lot of water right holders, from my perspective, saw the climate change report as a way to depart from the old rules that rule our system and develop new rules. It’s a brand new world with climate change, and we have to develop these new rules. But the trouble with that and the friction there is that senior water right holders have invested billions of dollars in developing water infrastructure and other systems that rely on the rules that we all have. So to the extent that those rules are changed or revised, or we’re doing things in a different streamlined manner, it certainly causes historic and senior water right holders a little bit of angst because, of course, all of their reservoir systems and the farming systems that support all of the reservoir and infrastructure and canal systems are somewhat reliant on having a reliable supply of water.

So all of that is the background and context for how I think a lot of water right holders viewed the climate change report.  Also, the water right holders live in this time of increased regulation. From a surface water perspective, certainly with this top-down regulatory atmosphere, there are many different ways that surface waters are being increasingly regulated, and users are having their water supply reliability reduced. I think we’ve all seen that.  Some of it is drought. But we’ve all seen the charts where folks have compromised reliability, even in 2017 and even in wet years.

“So with that, I’m going to talk about the climate change report and some of the comments that water right holders had about the report. I’m going to go through three parts.  First, the general legal background, second, the science and the predictive modeling nature of the report, and third, I will talk about the recommendations.  And from the water rightholder perspective, the recommendations are really the most concerning part of the report.

Climate Change Report: Legal Background

The report opens up with a general kind of legal background. It’s very high level, it’s very readable, and from a water rights perspective, I think it’s largely true, but I think it overstates the State Water Board’s authority.  It doesn’t talk a lot about the State Water Board limited jurisdiction over pre-14 and riparians and the fact that they can’t really regulate those water rights holders.

In addition, that section does talk about a water right, which is a vested legal right protected by due process.  It does refer to that right as a ‘legal permission provided by the Board.’ That’s a concerning approach because if it’s a legal permission, clearly, the board kind of sees that as something that can provide and take away in a much different manner than a water right practitioner would view it.  Again, over and over, the courts have held water rights or vested rights are prone to shortage, not by State Water Board regulation but by the actual shortage of water.

So the beginning part of the climate change report was somewhat concerning to water right holders who are interested in the protection of senior rights.

Climate change report: Science

The science talks a lot from a very high-level perspective that we’re going to see increased droughts and increased rain, so much more flashy system, less snowpack, and because of that, we’re going to have to operate a little bit differently.  There’s the shifting of time as well. Without snowpack, increased rains will come earlier in the season, so you’ll have to have rights that accommodate early diversions rather than the historic later season diversions

The State Water Board largely relies on two tools. One is DWR’s suite of climate change assumptions.  That was the tool developed for SGMA, and interestingly, in SGMA, that tool is provided for GSAs to use as they see fit in their GSP at a local level.  In this climate change report, it’s used a little bit differently and is talked about as something that could be required for future applications. 

The second is California’s fourth climate change assessment.  That is a tool that took four global models and tried to calibrate them down and apply them at a statewide level. These are global models, basically, that look at climate change from a very, very, very wide perspective – a literal global perspective. And they’re trying to make assumptions and add in details and get them to apply to California.

That becomes really important because some of the recommendations want to further apply those to a really small system. And I think it’s such a broad perspective, from a global perspective down to a watershed perspective, and we have to really understand the limited utility of the tool,  Not that you don’t want to plan – because you do, but you have to understand that that tool has limited applicability. 

The DWR model understands that, and in fact, in the DWR SGMA model, they have an interesting disclaimer that says there’s an equal likelihood that future conditions will either be more stressful or less stressful than those described in the model. So it could be the same, and it’s equally likely it could be totally different.

Again, I’m not promoting that we shouldn’t be planning because we should, but we have to understand the tools we have and understand how those should be used. And if they’re global tools, it’s very difficult to ask people to use them at a watershed level.

So that’s the science from the water right holder perspective. It’s global science, really big picture, and we should listen to it. But the idea that we should have that drill down and affect a specific water right application on a small stream system is difficult to understand.

Report’s recommendations 

I’m going to talk about five of the recommendations of the climate change report.

The recommendation that climate change analysis should be included in new applications

The first is the concept that climate change analysis should be included in new applications.  Some water right holders were a little unnerved at even the idea that there would be this flood of new applications.  The reason for that is the shifting hydrology; the climate change report says the old senior rights that you rely on to divert water and put that to beneficial use today will not serve you tomorrow. That’s because they are probably having you divert water much later in the season because that was when the snowpack melted.  Now you’re going to need new rights, and they’re going to need to be earlier in the season. And they’re going to need to account for a flashy flood flow system.

So the concept that the old rights that we all rely on now will be scrapped in the future and we’ll have to come in and apply for new rights is a little unnerving and a little concerning.  There are certainly different ways to do that. If you are a senior water rights holder, and the system is entirely shifted, the idea that you should just all apply for new rights is an interesting one.  You could skin that cat a couple of different ways. So the concept is that for water right holders, your water right going forward isn’t going to do you much good.

Climate change models to evaluate water availability

The second issue is the State Water Board staff perspective that these global climate change models should be used to evaluate water availability on small stream systems now. That’s my understanding.  Some of the recommendations will take a long time, but my understanding is that staff, as of now, will require a new application to do a climate change analysis. What’s required currently is if you apply for a new right, your application must include an analysis of what water is available in the system. To add global climate change and figure out how that fits on to a specific watershed and a specific right, and you must also identify a point of diversion. So we’ve gone from a global sense literally down to the point of diversion on a specific stream system. And that just seems like a mismatch to many water right holders, and it increases the lift of a permit.

Instream flows and applications

The instream flows and the recommendation that climate change may require the State Water Board to reevaluate instream flows and require those instream flows upon an application, or tying those to an application and involving the instream flows into a permitting system. From a water rights perspective, the State Water Board has the tool to evaluate and develop instream flows; it’s through their water quality control planning authority that they do that.  The water quality control planning authority is a very big process. Science is presented, stakeholders can challenge that science, and they have due process and can put in their own science, question it, question the evidence that’s submitted. Then the State Water Board develops water quality objectives.  Again, you have an opportunity there at hearings to test those. And then, even after that, the Board has to implement those. So there’s a multi-step hearing process, where folks have a lot of process. And again, it takes a long time.

Having said that, that’s how the State Water Board should develop instream flows. That’s how they’re protective. That’s how they’re helpful. That’s how we know you’re not overly burdening the water right holder. So doing that, cutting that process down, and trying to do an instream flow evaluation on an individual permit level really seems to depart from the State Water Board’s existing authority.  I think it’s probably a little too far and outside their jurisdiction, so that that recommendation is certainly a concern.  If we’re going to talk about instream flows at the permitting level, I think we’ve really gone outside our existing authority, and we’re in trouble.

Fully appropriated streams 

The third component is the fully appropriated streams.  The report suggests that the State Water Board needs to reevaluate that list of fully appropriated streams.  For those who don’t know, there is a list of fully appropriated streams, and what that means is that you can’t apply for a water right on those water systems; they are fully appropriated. So the component of a permit requirement, which is to say that there’s water available for appropriation, has already been decided.

Of course, there is a long water code provision that talks about that process. It’s not just, ‘it’s fully appropriated, and we’re done; we’re closing this river down for business.’  And similarly, de-designating a river from that list has also a very long process. And for a good reason. There’s science, and there are many arguments for senior water right holders that feel like they had the senior rights to all of the available flow to that river.

So the concept of taking streams on and off this list – I don’t know how nimbly that can be done. It takes a long time. It takes an extensive process. Many people know probably that the Kings is in the very beginning stages of a similar de-designation process; it’s expensive, and all of the water right holders on that river are very invested in it. So again, the idea that these global models can come down to the watershed-wide level and be a reason to take streams off those lists is somewhat concerning, especially for the senior water rights holders, who hold water rights on those fully appropriated rivers. 

Flood-MAR

The fourth recommendation that I’m going to talk about is flood MAR.  I certainly think we should all be looking at this; SGMA is looking at this.  Flood MAR is managed aquifer recharge and the concept that if we’re going to have large rain events, and we’re going to need more storage, we should put that water underground to store it. And by itself, of course, that’s probably a very good idea.

The issue is that the State Water Board is already beginning to put its toe in the water of being a player in the aquifer storage arena. And again, that’s just beyond their jurisdiction.  Kern has been storing water underground and doing water banks for decades, and that’s not common. Up in the North state, you don’t have that. So this Flood Mar idea is a new concept for many basins, but it’s not a new concept in Kern.  So we need to be careful because all of the water banks that exist down in Kern, my assumption is you don’t want to see the Water Board come in and become a new regulatory agency on those existing operations when it is outside their authority.

The State Water Resources Control Board has already developed a supplement; it’s a form that you have to fill out if you’re applying for surface water right and you’re planning on storing any of that water. It’s a supplement. It’s not a permit, but I think it’s required, and it’s part of that application. So again, we see the State Water Board kind of beginning to get into areas and try to regulate in areas that historically they don’t have jurisdiction to do.

It’s concerning. We don’t want the State Water Board trying to manage aquifer recharge our aquifer space. That’s not only outside their purview in SGMA, but it certainly is outside their purview. It hasn’t been decided whether GSAs can really regulate the space of aquifer recharge. So that’s an outstanding question. And I think it makes a lot of people probably appropriately nervous. 

Curtailment

The climate change report suggests that with increased drought, the State Water Board will need to curtail more often. There’s this concept that in the big wet years, we’ll be able to store more water, but in significantly more often dry years, the State Water Board will need to come in and curtail folks more quickly.    

The climate change report uses some language, again, that makes water right holders very nervous, with the concept that they need to develop a rigorous curtailment methodology that can easily and quickly curtail water right holders. That’s just a mismatch. Curtailment is a very tough scenario. It highlights all of the State Water Resources Control Board’s tough challenges. They don’t have the authority to curtail pre-14 and riparian, so those folks are already off the curtailment list.   Curtailing post-14s, even those folks that they do have jurisdiction over, takes a huge amount of data and work, and due process.

For those folks who challenged the curtailment orders in 2014-2015, the court said, you have to have due process. And it’s unfortunate because it’s hard to get anything done if you have to have a lengthy hearing wherever it can come in and fight about their priority and why they’re cut off first – it’s very difficult to do that nimbly in a drought circumstance.

So, on the one hand, it is tough because it’s hard for the Board to do anything with limited jurisdiction, and then with due process and timeliness – you just don’t have enough time to do it. But I don’t think that that means we can promote doing it wrong. So I think it’s a difficult scenario, but certainly curtailment is never going to be easy, and it should never be accepted that we cut off people’s property rights in a quick, easy and efficient manner.

Certainly, we can improve the methodology which the State Water Board is currently using and try to get to agreements where we may be all lined up in an agreed-upon priority. But it’s going to take a lot of work, and it’s a tough job. And I don’t think we can have shortcuts, whether it’s based on climate change or not.

So that’s the last recommendation that I think concerns many water right holders, and it’s coming into play as we see this drought year and curtailment move forward.

So what can be done? 

For me, I can’t help but think of the difference between the surface water system and the groundwater system. And obviously, SGMA is in its infancy stages. But I wonder if this concept of local management isn’t something that’s much more effective and will work out much better.  I think the State Water Board’s approach to having to regulate all surface water right holders and all systems is so complex, and really, the local managers and operators on the ground do know what they’re doing. I would like to see the tools in this climate change report given to locals and have the State Water Board say how can we work with you to have this managed at a local level and have you planned for this locally?

It’s very similar to how the same tool is used in SGMA, which is we’re giving it to you; we want you to use it as a planning tool, whereas with the climate change report, I fear it is being used as a more top-down regulatory tool.  

I don’t think we have time to change the entire system. But I look forward to potentially having increased local management at the surface water level and the groundwater level. It’ll be interesting to see how the GSAs do this. If they do it well and manage groundwater sustainably, perhaps that’ll inspire the surface water system to do something similar in the sense of providing really good data and good tools to local managers, have them understand the limitations that they’re under, and then manage their systems locally with those constraints, but more of a bottom-up rather than a top-down approach.

In conclusion …

That’s how a lot of water right holders interpret the climate change report. I think we all understand we have to plan for a changing system. But I think that the existing water right priority system that we have allows for that change; it has some harsh results, but it was built on understanding and being able to accommodate shortage.

QUESTIONS AND ANSWERS 

QUESTION: According to the Delta Stewardship Council’s 2021 draft vulnerability assessment, climate change will make Delta water exports less reliable in the future, regardless of wet or dry years. Why is the state continuing to push for an expensive conveyance project in the Delta when it will almost certainly not deliver the promised water?

Erik Ekdahl: I can partially weigh in there.  The Board plays a permitting role, so we do have a little bit of a separation of functions. We don’t have a permit before us right now. So I can talk about it in the larger concept. My understanding, I haven’t read that report myself, or specifically, but the report is talking about current Delta operations, and the Delta Conveyance Project, as currently envisioned, would move the point of diversion so that it would provide that greater reliability. I think the alternative scenario that’s described, if you don’t do anything, then that supply associated with our current location of the pumps and diversions becomes even more threatened. And less reliable, even still.”

QUESTION:  How does the public trust doctrine play into the climate change issue as related to water rights?

Valerie Kincaid: “The public trust doctrine does require the State Water Board to ensure that it hasn’t over-allocated water in a way that hurts public trust resources. And that and unreasonable use are two authorities that, for the State Water Board, does expand their authority.  Certainly, unreasonable use gives them authority. If someone is using water unreasonably as a riparian or pre-14 right, the State Water Board can come in and say, You can’t do that. So public trust is one component that will allow the State Water Board to open up its jurisdiction.

I’m a big believer, probably not surprisingly, that should be done based on weighing and balancing competing beneficial uses. That’s what the public trust has always required.   The public trust shouldn’t be looked at as a free for all; it should be looked at when we have a specific ecological scenario where we’re allowing too much water to be diverted and having fish kills or endangered species, then we look at that and weigh all the beneficial uses.  Again, it’s process-laden, it’s time and resource-heavy. And it is so unexciting to go in and slog through something for a decade that is not giving you any results, and it’s not helping. But that’s the system we have. So public trust certainly does give the State Water Board authority. The Audubon case, that historic case where they went in and said, we didn’t balance this right, we have to relook at this. We have to protect the species, but they did a balance of competing beneficial uses.  You have to do that.”

Erik Ekdahl: “I completely agree with Valerie’s description. I think the long-term challenge is ultimately, if climate change drives changes in our historical precipitation or hydrologic regime, who pays for the climate change haircut.  Another person came up with that phrasing. But that’s basically the question. If there are changes in the amount of water available, how do we go back in? Do we rebalance it? And who’s going to incorporate that rebalancing? That’s a huge unknown question. There’s a huge amount of process with it, and it will be very, very slow. But that’s the process that we have.”

QUESTION:   Has the California or US Supreme Court adjudicated what rights one buys when buying land? Has either of them specifically excluded groundwater rights?

Valerie Kincaid:Systems have been adjudicated, and that’s both surface water systems and groundwater systems.  For groundwater systems, most adjudicated systems are down south; very few northern or even central basins have been adjudicated.  What happens in an adjudication is the court has to notice every groundwater right holder in that adjudication so they can all come into court and make sure that they have the opportunity to put evidence in about how often they’ve used the right and have they stopped using it during times of shortage.

What happens at the end of it is that the court comes out with what’s often called a physical solution. And it’s basically a plan saying, here’s who has what right, and what priority. And usually, it has a shortage plan that says, here’s who can divert what and in times of shortage.  It talks about carryover and a lot of different components that are very complicated in systems. But there has not been a Delta-wide adjudication. And there have not been as many stream adjudications. There have been some, the Stanislaus system is adjudicated, so you can go in there and say, here’s who has this right. And it’s, you know, it’s pretty much a court-ordered system. But the court has not done that on any massive level, it’s usually on a basin or stream level.”

Erik Ekdahl:The State Water Board does have a role in a surface water adjudication. But we can’t do it on our own motion or our own authority; we receive a petition from a party or group of parties where they ask us to go in and do this adjudication process that I think ultimately then gets referred to the court. And so there’s a lot of process that goes with it. The Board recently got a petition from the Fresno River, and that petition was adopted last year. That was the first one in 40 years. So we don’t get them very often. I think it’s a question, is this something that we might see more of as SGMA starts to play a little bit more of a role? Maybe, but we don’t really know yet. I think the pressure that is put by potential riparian or unexercised riparian rights holders on surface water stream systems, as SGMA starts to come into place, might push us in that direction. But again, that’s a pretty perspective, and we don’t know yet.”

Valerie Kincaid: It’s interesting you say that because riparians and overlying water right holders on the groundwater side, it’s so difficult for them because they don’t have a piece of paper with the right on it. And in fact, it’s not quantitative anyway. So you have as much water as you can beneficially use on your overlying parcel or your riparian parcel.  Then you have this system where you’ve got the appropriative folks who are more in line, you understand what they have, and you can really quantify demand.  But one of the challenges is it’s really hard to quantify riparian and overlying demand, and it can change. And a lot of its claimed and unverified. And the State Water Board is dealing with that right now with curtailment. It’s just a real tough piece of the puzzle.”

QUESTION: What if the climate change model projections don’t work out as planned? Is there a provision for these projections to be reevaluated? Should the state board’s appointment process be replaced with elected offices based on regional board boundaries?

Erik Ekdahl: “It seems like that’s mixing up a couple of different topics and maybe comes in with an assumption about how we’re even using the report that’s not quite on target. All the climate change report says is that you need to plan, and here are some tools that we think you could use already, particularly if you’re a larger, potential new rights holder. That’s all it says.  When you do the water availability analysis, I think what we’re contemplating is how do we create permits and new application terms that are flexible and doesn’t foreclose the ability to divert when there is water available based on hydrographs that don’t reflect current conditions?

We want to make sure that we’re examining a range of conditions. And this isn’t something that will be forced on existing right holders; this is looking prospectively at new applications. And if that water is available, that will be more beneficial to the applicant, not less. So I think there’s a pretty deep misunderstanding of just what the report means to existing right holders out there in terms of how it’s implemented. 

In terms of the elected approach, I think, you know, the whole point of having an appointed board is that they’re not responsive to changes in political direction and wind, but that is a broader question.”

Valerie Kincaid:  “The only thing I’ll call out … it’s so hard to predict what’s going to happen. And I think the State Water Board clearly recognizes that.  With both models, they are the people who have said these are global models, we’re trying to get them to fit. So I don’t think they’re hiding the ball on that at all. But the question is, should we be cautious, try to plan, and be open to new tools? I think the answer is yes. Should we go and change the existing requirements based on these tools that are unsure? I mean, my sense is, no, we need to understand really the efficacy of the tool before we shake up the system.”

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