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California’s mountain snowpack is shrinking, and climate change is intensifying the severe drought. As large amounts of water are diverted to cities and farms, streams have been shrinking and reservoirs have decreased. Endangered fish are struggling just to survive. As groundwater levels continue to fall, many families in Central Valley farming areas are experiencing dry wells.
A group of prominent legal experts has presented a blueprint for updating California’s system of water laws to fix long-standing weaknesses and adapt to the worsening effects of climate change. If adopted by the Legislature, their proposals would allow the state to better manage groundwater and surface water, protect vulnerable communities, and improve oversight of the state’s water rights system.
The group presented 11 proposals this month. They claimed that the reforms would be a major revision to laws that govern divertions from streams and rivers and would give state officials more tools to address the growing strains on the state’s water system.
“California’s water laws, they were adopted a long time ago … in a California that was a very different place,” said Holly Doremus, a UC Berkeley law professor who was part of the group.
“It’s past time to take a broad look,” Doremus said. “Climate change makes the situation that much more acute.”
The group suggested changing state law to require regulators to consider climate change effects when making decisions about water rights. This includes approvals for new divertions from streams and rivers. The legal experts stated that California must change the way it administers water rights and monitor how much water is being taken from rivers due to the increasing heat of the planet.
They demanded measures to protect vulnerable Californians living in low income rural communities who are exposed to unsafe contaminants or have wells that are at high risk of running dry.
The group urged the Legislature to require completion of a long-delayed water-quality plan to protect threatened fish in the Sacramento-San Joaquin River Delta, the heart of the state’s water system. And they said the state needs to change the rules governing water releases from dams so that agencies must consider not only the flows that fish need but also the water temperatures — because warmer temperatures have taken a worsening toll on endangered salmon and other species.
“We are in a time of crisis. We have a climate crisis, we have wildfire crisis, and we have droughts intensifying over time,” said Jennifer Harder, a member of the group and a law professor at University of the Pacific’s McGeorge School of Law.
Harder and other lawyers in the group said they expect to face resistance but hope the unrelenting drought may help build support for changing California’s water laws. According to the group, 43-page report detailing their recommendations that they’re suggesting a “focused approach to updating existing laws, regulations, and funding.”
They presented their suggestions during a webinar hosted by the Planning and Conservation League. The Sacramento organization convened this group over a year ago to review proposals for modernizing California water law.
“This is not our report, but we do agree with its recommendations,” said Jonas Minton, senior water policy advisor for the Planning and Conservation League. He said there have been warnings for years that people will suffer from climate change in the future, but Californians are already seeing the water rights system “fail for disadvantaged communities, the environment, farms and our cities.”
Under the current system, the State Water Resources Control Board considers historical stream flow data in decisions about water rights permits, but that “is no longer defensible” as climate change leaves less flowing in watersheds, said Clifford Lee, a former state deputy attorney general who was one of the report’s authors.
Lee stated that climate change will lead to less precipitation as snow, shift peak runoff from historical patterns into earlier parts of the year, shorten the precipitation period, and increase the frequency and intensity of drought. “There will simply be less water in the near future.”
He said relying on historical water data to estimate future flows is the “Waiting for Godot fallacy.”
“As you all know, from the Samuel Beckett play, Godot never arrives,” Lee said. “And that is the problem with using historical data to determine future flow. The flow is not going to arrive.”
California’s last two years have been among the driest ever recorded. Extreme heat has made matters worse by baking soils, increasing the rate of evaporation, as well as reducing the flow in streams and rivers.
The Sierra Nevada was blanketed in unusually wet snowfall in December heavy snowHowever, During a very dry January, snowpack shrankIt now stands at 79%, which is the average for this time period.
The water levels in California’s largest reservoirs remain far below average. And if March doesn’t bring wetter conditions, the state appears headed for another long summer of drought.
Lee stated that climate effects must be considered in water rights permitting processes to better prepare for extremes. This requires that any analysis of water availability be based on science that predicts future flows. This approach should also be adopted by the state in managing existing water right.
The group also recommended that California have better water data. Lee said it’s astounding that California, the land of high technology and home of Silicon Valley, “lacks the ability on a real-time basis to determine who is diverting water from surface water sources, when such diversions are occurring, in what amounts.”
The state is required to report the amount of diverted funds in the past year under existing law.
“So basically, during the drought, the state is flying blind. We do not know who’s taking water,” Lee said. “It’s extremely important to get a handle on a real-time basis during drought.”
The lawyers suggested that California start monitoring diversions in at most two watersheds. After that, it might be possible to expand tracking to other areas.
Another problem with the current system, they said, is that the state water board is unable to investigate the water rights of some of the state’s major water users — the most senior rights holders with pre-1914 claims — to determine whether they are valid, or whether some water users might be taking more than they should.
They suggested that the state water board be given new authority to investigate water rights claims. Lee said this change would align California with other western states and make for a “more unified water rights system.”
The group also included former members of the state water board Tam Doduc and law professors at UC Davis.
The group suggested changes that would address the widespread problem of contaminated drinking water. Harder stated that approximately 1 million Californians, many of them from low-income communities, don’t have safe drinking water access. Many rely on small water systems and household wells, where the water is contaminated by chemicals or naturally occurring pollutants like arsenic.
“Many of these communities are historically underserved minority populations that have been subject to explicit and implicit racism in the delivery of services including water,” Harder said.
Harder stated that she and other members of the group believe California’s water law should address these systemic inequalities and protect disadvantaged communities.
State legislators in 2012 passed a law recognizing access to clean water as a human right, and have since approved funding to pay for fixes in communities where the tap water isn’t safe to drink. The group recommended the state start requiring that at least one member of the state water board — and each regional water quality board — have experience working on environmental justice issues.
Other proposals address the ongoing problem of wells running dry from heavy groundwater pumping that occurs in farming areas, which causes declines to aquifer levels. According to state data, there have been more than 3700 reported dry household wells since 2013. The number of dry wells is also increasing. This has seen a dramatic increase in the last year. The state received reports that 975 household wells were shut off in 2021. Many of these wells were located in agricultural areas in the Central Valley.
The group called for measures that would protect homeowners who are struggling with dry wells. Meanwhile, the state slowly implements regulation under its 2014 Groundwater Law, the Sustainable Groundwater Management Act. This requires local agencies to create plans to eliminate the problems of chronic overpumping.
They suggested that the state establish local groundwater agencies in order to determine whether pumping may cause more wells to fail. To ensure that people who depend upon wells are protected, deepen or repair their wells, or connect their homes to new water pipes,
The state Department of Water Resources recently reviewed plans submitted by local groundwater agencies and told agencies in farming areas across the San Joaquin Valley that their plans are “Incomplete” and will require changes to address widespread risks of more wells going dry, as well as other problems. The local agencies will have six month to revise their plans. If they fail to address the criticisms, state regulators could deem their plans “inadequate,” which would trigger intervention by the state water board.
The group also proposes to address fish-financing threats. The experts said the state water board should adopt long-delayed updates to the state’s Bay-Delta Water Quality Control Plan by the end of 2023.
They said the board also shouldn’t approve any new water rights permits or extensions in the watershed until the final plan is adopted.
“In light of the fish crisis in California and the state’s clear authority to address that crisis, the failure to get revised fishery flow objectives across the finish line, for whatever reasons, is an unacceptable public policy failure,” Harder said. “The group’s sense was that the fish don’t have time to wait longer for further delays.”
Harder noted that many of California’s surviving fish species are struggling, and some are at risk of extinction. The drought-prone winter-run Chinook of the Sacramento River has caused significant losses, partly due to warmer water temperatures.
The group stated that cold water is vital to salmonids and suggested that state law be amended to require dam managers to ensure adequate flows and water temperatures that are cool enough to protect them.
The report’s authors said they hope state legislators will take up their proposals and introduce bills.
The project followed a similar effort in 1977-78 by the Governor’s Commission to Review California Water Rights LawThe original version of the, was created by the then-Gov. Jerry Brown. Some of that commission’s recommendations were subsequently adopted, while others — such as managing groundwater — failed to gain traction for years.
If the Legislature were to adopt the full slate of proposals, the authors believe, the reforms would represent the most significant changes to California’s surface water laws Since 1913.
Doremus said these proposals aren’t intended to be a complete list of needed upgrades, but rather a start to “move the system in the right direction” and make it work better for the 21st century.
This story originally appeared in Los Angeles Times.
