Panel discusses recommendations to update California water laws to address drought and climate change
California’s prolonged drought and the increasing impacts of climate change have some questioning whether California’s current system of water laws is equipped to respond to the state’s ever-evolving hydrology. As it is, one million Californians do not have safe drinking water, our native species are struggling, and farms and cities are faced with increasingly scarce and unpredictable water supplies. The increasing impacts of climate change will only exacerbate these conditions. Recognizing this, the Planning and Conservation League assembled a group of California water law and policy experts to review and make recommendations on how California water law could be updated to account for these unprecedented conditions. In February of 2022, the group released its recommendations.
At the spring 2022 conference of the Association of California Water Agencies, a panel discussed the recommendations.
Clifford Lee is one of the group that developed the set of recommendations that are the topic of this panel discussion. Notably, he was appointed to Governor Brown’s Water Law Review Commission which published a series of reports in 1978. He is a former Deputy Attorney General in California’s Attorney General’s Office, where he represented state agencies such as the Department of Water Resources in a range of complex litigation involving State Water Project operations, water quality control planning, and biological opinions.
Erik Ekdahl is the Deputy Director of the Division of Water Rights at the State Water Resources Control Board. Mr. Ekdahl joined the State Water Board in 2008, where he worked on groundwater cleanup and implementing the Sustainable Groundwater Management Act. He was Director of the Office of Research Planning and Performance, among other things. Mr. Ekdahl is a geologist with a Ph.D.
Rebecca Akroyd is the general counsel for the San Luis and Delta Mendota Water Authority, whose 27 member water agencies represent M&I and agricultural water users in the San Joaquin Valley and the Bay Area. Ms. Aykroyd was formerly a shareholder at Kronick law firm and on the executive committee for the environmental section of the California Lawyers Association.
Eric Robinson, a Managing Shareholder at the Kronick law firm and manager of their Natural Resources Practice Group, was the moderator for the panel.
Overview of the recommendations
Clifford Lee began by noting that except for the adoption of the Sustainable Groundwater Management Act in 2014, there has not been any extended effort to review California Water Rights Law since the 1978 report, which was 44 years ago.
“The 21st century has elevated a number of issues, such as frequently occurring droughts and climate change that were not fully appreciated in the 1970s,” he said. “So I think time and those events have driven an effort to see if we can take a second look at California water rights law.”
In 2020, the Planning and Conservation League brought together several water law specialists to discuss whether or not or to what extent California water rights law should be reviewed and possibly updated. Five of the seven members were from legal academia, and Mr. Lee and Tam Dudoc, a former State Water Resources Control Board member, are water law practitioners.
He said that the group is solely responsible for the recommendations that were adopted. While the Planning and Conservation League initiated the process, their role was limited to logistics such as setting up the Zoom conferences and assisting with word processing and formats. The Planning and Conservation League did not have any role in adopting or vetoing any of the group’s recommendations.
Mr. Lee then reviewed the recommendations
Updating water rights administration to address drought and climate change
There are five recommendations:
The first is a recommendation that the State Water Board adopt regulations to set up practices and methods for water availability analysis and water rights proceedings that address the effects of climate change on anticipated watershed hydrology. The idea is to move away from solely using backward-looking data like historical flow data and look at more of the results from contemporary modeling about what climate change will do to watersheds.
The second recommendation is to improve surface water rights verification. The Board should be authorized to initiate investigations to verify on a case-by-case basis pre-1914 and riparian rights outside the current permit and license system. California (unlike any other western state) has a patchwork system of riparian rights, pre-1914 rights, and post-1914 rights, so this would provide a tool for the Water Board to look at the water rights and determine whether they are based on defensible legal authority.
The third recommendation is to give the water board some interim relief authority. Mr. Lee pointed out that the Water Board currently has authority to initiate water rights proceedings under numerous legal tools, such as reasonable use (Article 10, Section 2 of the California Constitution) and the public trust. In addition, other tools, such as continuing authority and reserve jurisdiction, give the Water Board the opportunity to look at water rights.
“One of the things the Board does not have is the equivalent of what a trial court has to issue a preliminary injunction or a temporary restraining order in the course of the proceedings,” he said. “Water right proceedings can last for many, many years, unlike a Superior Court, which has the authority to enter interim equity relief. So one of the recommendations is that the water board be granted something equivalent to that.”
The fourth recommendation is to give the Water Board authority to initiate a statutory adjudication on its own. Currently, the Board can only initiate a statutory adjudication at the request of a water right claimant in the watershed.
The fifth recommendation is to transition to real-time monitoring of diversions and use. Currently, there is no real-time method for determining diversion and use, although it is technically feasible. However, recognizing the difficulty of establishing real-time monitoring and reporting of diversion and use, the group recommends the Board initiate pilot projects to determine how it would work and how it might be financed. Then prepare a study assessing the results of these pilot projects to determine whether this tool is useful on a broader basis.
Implementing the human right to water
In 2012, Governor Jerry Brown signed AB 685, making California the first state in the nation to legislatively recognize the human right to water. However, little has been done to implement that obligation. So the group had three recommendations:
The first is to explore funding sources for NGOs and Tribal groups to participate in state board and regional board proceedings to provide more parity for disadvantaged groups to participate in important board proceedings. A suggested model is the process at the Public Utilities Commission where ratepayers can have some of their expenses paid for by the Public Utilities Commission to the extent their work materially affected a significant issue that was attending before the Commission.
The second recommendation is to require that one member of the State Board and each of the regional boards be qualified in the field of water supply or water quality related to environmental justice. Mr. Lee noted that subject matter conditions on board members aren’t new; for example, the water code has required the State Water Resources Control Board have a member that has a background in agriculture for many years. “One of the 21st-century concerns regarding environmental justice is that disadvantaged communities should have the opportunity to have a place at the table,” he said.
The third recommendation is to impose a duty upon Groundwater Sustainability Agencies to mitigate for adverse effects on domestic wells due to groundwater extraction. Mr. Lee pointed out that where the rubber meets the road on the human right to water has to do with mitigating adverse effects to domestic wells due to groundwater extraction. Therefore, the group recommended that Groundwater Sustainability Agencies under SGMA be entrusted with the responsibility to mitigate for those adverse effects.
“I remember from law school, there was an old saying that there can be no right without a remedy,” said Mr. Lee. “With regard to the issue of domestic wells, one effort here was to try to provide some kind of remedy to the extent that groundwater extraction in a groundwater basin is affecting domestic wells.”
Addressing the extinction crisis facing California’s native fisheries
Mr. Lee noted that everyone in the room is likely familiar with the decline, and he said that the group didn’t cut significant new ground in this area. While some have recommended much more dramatic changes to the water code, the group had two recommendations:
The first recommendation is to amend Section 5937 of the Fish and Game Code to consider water temperatures and flow. Science has shown that the quantity of flow alone is insufficient to keep fish in good condition; the temperature of the water can be equally or more important. So the group recommended Section 5937 be amended to say that owners and operators of dams should release sufficient flow, as is required under current law, of sufficient temperature to keep fish in good condition below the dam.
The second recommendation is to set a deadline of December 2023 to finish the update to the Sacramento River portion of the Bay Delta Water Quality Control Plan and to implement the San Joaquin River portion of the update. The last time the Board fully updated the Bay Delta Water Quality Control Plan was 27 years ago, in 1995. The group took the timeline from the State Water Board staff, who set a potential timeline for completion by the end of 2023.
“There’s nothing revolutionary about the report’s recommendations,” acknowledged Mr. Lee. “Most of the recommendations regarding surface water are directed at improving surface water certainty and reliability by firming up the accounting of the long-standing first in time, first in right system of appropriative water rights. And I want to stress the report assumes the retention of the current patchwork system of riparian, pre-14 appropriative rights, and post-14 permit and license rights.”
Potential legislation to address the recommendations
Rebecca Akroyd then gave a brief overview of proposed legislation to address the recommendations.
AB 2108 would require the state board to establish an environmental justice and tribal community hardship stipend program to fund participation for tribal and NGO participation in board proceedings. It would also require state board and regional boards to have a member qualified in the field of water supply and water quality relating to disadvantaged or tribal communities, and have that person not be the same member as the appointee qualified related to irrigated agriculture. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2108
AB 2639 would have required the State Water Board to adopt the final update on Bay-Delta Plan phase two and require implementation of phase one to the update on or before December 31, 2023. The legislation also would have required that no new water rights for new or increased diversions from the Delta could occur if either of those deadlines are missed. This bill did not pass the Assembly and is no longer active. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2639
QUESTION: A lot of the recommendations would create mandatory duties, particularly for the State Water Resources Control Board, and funding would be needed to implement these things. Could you talk a little bit about how the funding might work?
The report authors left open for public debate of how the recommendations should be funded; the report has no firm judgment or opinion as to funding mechanisms, said Mr. Lee. “My personal view, speaking for myself, I think there should be a significant role for general fund financing. And perhaps there could be a similar role for funding underrepresented groups to level the playing field in regional Board and state board proceedings.”
Erik Ekdahl pointed out that the Division of Water Rights is 70% funded by fees and 30% funded by the general fund, and that has changed over the last 20 years when it used to be 95% general fund and 5% fees. Each new position added to the division raises fees by about 1.5% for all fee payers. The largest 30 to 40 fee payers account for about 40% of the entire water rights fund. It’s largely a fee-funded operation for the post-14 licensed and permitted water rights.
“It’s a very complicated structure,” said Mr. Ekdahl. “The riparian and pre-14 don’t pay anything. Obviously, that’s tens of millions of acre-feet that don’t pay a cent. And the post-14 fee payers make up for it for the larger extent.”
“To the extent these proposals are described as having a public benefit, it should be the public that pays for the funding of these,” said Ms. Akroyd. “A good example of that perhaps would be for participation of tribal or NGO representatives in board proceedings. There’s already an ability of those folks to challenge those rulings and obtain attorney’s fees if they’re successful. So I think there would be a significant issue or problem with water users having to pay for that participation.”
“The other thing I would note, the reason for not having water users be responsible for funding these is that, consistent with Eric’s comments, water users have already faced significant fee increases,” she continued. “Just between the fiscal year 2010 to 2011 and then to the current fiscal year fees, rates of more than tripled for annual fees. It went from $100 as the base fee plus .030 cents per acre-foot, to $300 base and about a penny per acre-foot. So the cost has more than tripled. It’s already a significant expense. So I would say to extend that there is a benefit for the public, it should be the public that pays.”
QUESTION: Regarding the feasibility of real-time water diversion, monitoring, and reporting, there’s a lot of variety in diversion infrastructure, so how would that work? Having a precise measurement obligation and the physical reality of carrying it out depends on the resources water users have. The larger users have a lot of resources, medium and smaller ones, maybe not so much. So what’s the reality of being able to implement it? And haven’t there already been attempts to do that in the Delta?
Erik Ekdahl said real-time reporting is very possible, and a lot of folks are doing it already. “We shouldn’t be talking about telemetry down to those small and medium users,” he said. “If we look at the Bay Delta, there’s about 17,000 rights or claims of rights in the broader Delta watershed, but only about 600 of those account for over 90 to 95% of the water use. So diversions of more than 5000 acre-feet per year is a small number relative to the 17,000 watershed-wide. And by focusing on those larger diverters, the 90/10 rule or even the 95/5 rule, you’ll get a pretty good bang for your buck. And you’re going to have to be able to be flexible watershed by watershed; not every watershed is the same statewide.”
SB 88 was legislation passed in 2015 that required metering and measuring water diversions. Prior to that, most diverters were not required to meter or measure their diversions.
“So it was kind of a guess,” said Mr. Ekdahl. “You can imagine going into a drought, how guessing on diversion and water demand leads to pretty poor outcomes. We did the best we could, and we got some legislation that moves us forward, so now we have requirements for metering and measurement. But what we didn’t have was a data system that could actually catch and integrate that data. And so instead, what we got was 14,000 Excel spreadsheets, each formatted differently … variety is the spice of life, certainly, but variety is also the death to accurate and usable data. Everything’s different, and it was completely un-integratable.”
“So we need to take another look at SB 88,” he continued. “Again, this is my perspective: simplify those requirements. Put a little more structure to the format of the reporting. But maybe recognize, again, that 90/10 rule where is it appropriate to really focus on accurate metering and measurement as opposed to just chasing data simply to have that data.”
QUESTION: Regarding funding mitigation for domestic wells, the groundwater sustainability agency would have this obligation now to identify the impacts on these kinds of wells and then mitigate them. Where would the funding come from to mitigate? What are the main mitigation options?
Mitigation could take many forms, such as providing assistance to domestic users to connect with other public water systems, deepening existing domestic wells, or providing alternative supplies, said Mr. Lee. “The report did not recommend the tools. We’ll leave that up to the Sustainable Groundwater Management Agency. The report also did not address the funding issue. I can also see this issue where general fund money could make a significant contribution. The recommendation itself, as I recall, would have a reasonable standard imposed, so there would be a rule of reason. So any diminution in groundwater elevation wouldn’t necessarily trigger this. And it would be developed on a case by case basis.”
“I think that GSAs right now aren’t in a position to effectively mitigate at this stage,” said Ms. Akroyd. “There aren’t adopted GSPs yet. So forcing GSAs true to comply with this requirement without having final plans without having mechanisms in place for funding that’s clear is just setting people up to fail. So I don’t think there’s feasibility yet. And legislation might come out too quickly before SGMA has the time to move along and have the plans finalized.”
“A lot of these recommendations are made in the spirit of them being for the broader public good,” said Mr. Robinson. “Yes, it’s a water resource user, arguably, that is creating the need to do this additional regulatory measure that incurs additional compliance costs, but by and large, and certainly, in the Association of California Water Agencies, the public agencies are serving the public. That’s why they exist. That’s their mission. And it seems to me that grant funding to help upgrade facilities, and monitoring and reporting and things like that would probably go a ways towards enhancing acceptability and avoiding staunch opposition. I don’t know that it would eliminate concerns, but it would seem like it would help it; it seems to in other circumstances.”
QUESTION: With regard to placing regulations on pre-14 water rights, did you give any consideration to the standards that you would reach when you hit a taking? Is there a red line someplace or some criteria that you won’t cross? Because I happen to think if you take one gallon of pre-14 water, particularly pre-statehood water, it’s a taking.
Takings as a legal issue apply to any government regulation. California law sets up certain criteria for establishing pre-1914 rights, said Mr. Lee. One is that you have to indicate you provided notice; in the 19th century, it was simply putting a notice on the tree at the point of diversion. In later years, you had the option to file the notice in the county recorder’s office, but it wasn’t required. You put your water to beneficial use in a timely fashion, and you have to continuously use that water and not lose it through forfeiture. So and the water also has to go to a reasonable and beneficial use. All of these are proof requirements.
“I want to stress that in any takings claim, a precondition of a takings claimant is proof that the claimant has, in fact, a protectable property interest,” said Mr. Lee. “So the burden is on the plaintiff to actually prove up the elements of a pre-14 right, before any other aspect of taking law applies. And if you can’t prove that up, and that’s an issue of fact, subject to discovery, then your takings claim is going to fail.”
“Now, what the recommendation suggests simply is the Board can initiate a procedure that would allow a claimant for a pre-14 right to prove up those rights. And if the claimant meets that burden of proof and proves up the rights, then the Water Board would, in fact, issue an order saying, yes, you have that right. It may be that the claimant can prove up some of the rights or at certain seasons of diversions or during certain priority times. And then the right might be limited to that.”
“There may be some situations where the claimant can’t prove the right, can’t prove the elements of basically 19th century California law that the right exists, in which case the board would make a determination that the claimant hasn’t presented defensible evidence,” continued Mr. Lee. “Now, like any agency, that’s a decision; that agency is subject to judicial review. If the Board made a mistake and the decision is not defensible, then a superior court can overturn it. But you can’t jump to the takings claim as a matter of law unless the claimant first establishes that she or he holds a defensible property right. And that’s all the recommendation says is we’re going to give you that opportunity to do that.”
QUESTION: About the representation of disadvantaged communities or environmental justice being embodied in the water boards within the vision of the workgroup, was it viewed as remedial because we’re solving a problem? Or is it a recognition that we will have these issues forever, and so we need to enshrine it in law so that they will always be represented in the discussion?
“I think the two are not necessarily inconsistent,” said Mr. Lee. “One does not know how long remediation is going to take. In my lifetime, I have seen the steady but nonetheless slow progress of remediation for racial segregation in this country. And that process has gone on for a lot longer than I’ve been alive and will continue after I’ve passed away. So I think it’s more a long-game issue. I don’t think I can see a stopping point that I can point to. So I would anticipate this would be more of a long game issue until the long-term issues have been addressed.”
QUESTION: Based on my reading of the recommendations and looking at the people that drafted them, it appears to have an environmental bias. I want the panel to talk about it because I think it’s an issue.
The environmental bias is clear by who initiated the process: the Planning and Conservation League, pointed out Ms. Akroyd. “I think it’s a good conversation starter, but I do think that recommendations need to be made with water user participation. Looking back to the 1978 Commission, it included water law attorneys, a former rancher, and an academic focused on agriculture – it had a broad range of voices that were included in coming up with those recommendations. In addition, the report included a dissent section, where someone could argue why they didn’t like those recommendations. So I think you have to have buy-in and other people at the table to have recommendations go forward. Without that, you’re setting yourself up for litigation, challenge, and distrust of it. So I do think composition needs to be broader and encourage a broader process to happen going forward.”
“Speaking personally, I would have no objection to an alternate stakeholder approach to address water rights reform,” said Mr. Lee. “The water law reform group was intended to bring people knowledgeable about California water rights law together to see if such a group could reach consensus on reform of the current system. The intent was to focus on water expertise and not on political balancing. That said, I would personally welcome an alternate stakeholder-driven effort to address water rights. For the group, we would agree that we have no monopoly on all of the answers to the questions. I would encourage others in the water community to engage in this conversation through whatever appropriate forum would be necessary. As someone once said, we should let 1000 flowers bloom.”