Environmental, Natural Resources, & Energy Law Blog

Alison Cunningham

MSL Spring 2023

State of Drought: Refocusing California’s Water Conservation Policies from Risk Avoidance to Risk Reduction

INTRODUCTION

From gold mining, agriculture, recreation or aesthetic value, California has historically relied on water for almost every stage of urban development, and can attribute the growth of a robust economy and a large population to the resource. In 1848, gold was discovered in the American River in the north of the state, and by the 1930s, construction of water supply projects such as Hetch Hetchy and the LA aqueduct ensured that the majority of available water within the state was being used for economic purposes. Comprising 30% of the consumptive population in the United States for water use, California has an unprecedented need for water conservation in the face of climate disruption. Unfortunately, state legislation and resource agencies have failed to meet the needs of the population, relying on principles of risk avoidance to curtail water use, versus an active role in risk reduction. Without a comprehensive overhaul of the state’s water use, both industrial and private users will face the economic and social consequences of a limited, vital resource. This blog will address the need for a paradigm shift from avoidance to mitigation, and will highlight current legislation that will help meet this end.

HISTORIC WATER MANAGEMENT APPROACH IN CALIFORNIA

In the history of resource management in both the state of California and the United States at large, risk avoidance has been the focus of most legislative initiatives. Risk avoidance is the practice of avoiding sources of risk in order to incur less economic, social or exposure to liability.^[1]In essence, risk avoidance asks California water users to use less water, instead of directing policies towards better water management on a state level (risk reduction). Industrial and societal pressure has swayed the state towards unbridled growth, and with it, unbridled use of water. The largest water planning endeavor in the state occurred in 1959, with the California State Water Project, which was created to meet the needs of the quickly growing urban population, and to avoid water scarcity issues seen in earlier decades in the state. As noted in A Brief History of California Water, former Governor Earl Warren warned the state legislature that there would not be enough water available for this unprecedented plan–and time has proven this to be correct.^[2] In 1994, state officials and members of the State Water Project (SWP) and contractors met to address the issue, resulting in the Monterey Amendment. From the Water Education Foundation, “As part of large-scale restructuring of water supply contracts, the Monterey Amendment allowed for storage of excess flows during wet years in groundwater banks and surface storage reservoirs. This stored water could then be used later during dry periods or to help the Sacramento Delta.”^[3] In 2000, a state appeals court upheld challenges to the Amendment brought by the Planning and Conservation League, Citizens Planning Association of Santa Barbara County, and the Plumas County Flood Control and Water Conservation District. The court held that the California Department of Water Resources was required to prepare a new Environmental Impact Report under the California Environmental Quality Act (CEQA) to consider the impacts of permanent water shortages, and how the loss of excess flow would impact groundwater banks and surface storage reservoirs.^[4] This is a prominent instance of challenges to California water law that refocused from risk avoidance–to risk reduction. Under an amended EIR, the DWR was forced to reconsider alternatives to the project, water supply reliability, as well as areas of concern. By considering the impacts of permanent water shortages in the area, the EIR helped to employ the principles of risk reduction (long-term forecasting of resource availability) instead of minimal considerations of resource availability in order to focus on immediate economic gain.

CURRENT SUPPLY ISSUES

With the impacts of climate change, California’s wavering supply of water has become even more precarious. Two of the most recent droughts occurred in 2007-2009 and 2012-2016, and in 2022, Governor Newsom ordered cutbacks on both domestic and industry uses. In 2016, then Governor Jerry Brown lifted a state-wide drought emergency use plan and issued Executive Order B-37-16 that stipulated California’s adaptation to water conservation as a “new way of life”.^[5] This was a significant change from reactions to previous droughts, which acted as booms and busts for usage, and did little to truly curb water allocation. While the 2022 plan under Governor Brown worked initially, Californians backslid in their water use by eighteen percent between April 2020 and May 2020, compared to the consumption rate in the same months in 2016.^[6]

Brown’s Executive Order noted that the State Water Resources Control Board was permanently prohibiting certain wasteful practices for potable water, such as hosing off of hardscapes, washing automobiles with free-flowing hoses, using non-recirculated water in public water features, watering lawns within 48 hours of precipitation, or watering in excess, and certain instances of public irrigation for ornamental turf. Additionally, the Executive Order stated that “…these ongoing drought conditions and our changing climate require California to move beyond temporary emergency drought measures and adopt permanent changes to use water more wisely and to prepare for more frequent and persistent periods of limited water supply”. ^[7]

In multiple declarations within the EO, California citizens are called upon to reduce water use. However, the legislature should be aiming these initiatives at industrial users, who comprise the majority of domestic water use. Whereas 90% of water in California is utilized by industry or agriculture, only 10% is used for urban consumption, yet the EO stipulated that the focus of then-immediate conservation would fall on urban populations. Governor Brown’s executive order did address the issue of water scarcity, but unfortunately, still held to the principle of risk avoidance by focusing on the public as a means to mitigation, instead of industry or other legislation that would address the inequity of water consumption and misappropriation by industries and other, less regulated users.

2022 PLAN

In 2022, Governor Newsom announced a new water policy, California’s Water Supply Strategy: Adapting to a Hotter, Drier Future.^[8] This policy addresses the fact that California is predicted to lose 10% of its overall water supply by 2040, furthering already scarce water availability for agricultural and domestic use. He proposes that the state modernize its water systems to meet higher efficiency standards, increase recycled water use, expand storage capacity and develop better drought resilience plans.^[9]

This 2022 plan moves the state further towards risk reduction, though the plan falls short in many aspects. Newsom argues that the state should allocate more resources towards technological shifts and infrastructure updates to increase efficiency–in order to develop “new water supplies”.^[10] While efficient use of water certainly helps, it does not directly address the issue of how water is consumed in the state, nor does it curb development and industry; it simply assumes that technology will keep safe current use levels. Similarly to Governor Brown’s proposal, Newsom also targets the 10% consumptive rate of urban users, citing yet again an increased need for reduction in home use. By contrast, his other policies aim at risk reduction; including improved forecasting, data generation, and management, including Water Rights Modernization.”^[11] This is one of the few modern initiatives that recognizes the need for updated data sources to capture water availability within the state, in order to create use plans that genuinely reflect available water. The water policy states that it will:

●       Continue to invest in the human and technical resources needed to improve predictions and forecasting for water supply planning.

●       Advance a multi-agency effort to install 430 new stream gauges and upgrade or reactivate 200 more across the state. These gauges provide real-time surface water data for enhanced drought management and flood response.

●       Work with the U.S. Army Corps of Engineers leadership to accelerate the pace at which the manuals guiding reservoir operations are updated to reflect a changed climate.^[12]

ANALYSIS: MOVING TOWARDS RISK REDUCTION

The 2022 plan transitions California’s water resources planning from the perspective of unbridled growth, to a focus on water as a limited, crucial resource. It notes that our climate has changed, and in preparation, there is an increased need for storage, use of recirculated water, increased conservation, and investment in new technologies.These investments and agency efforts under the 2022 plan will help to capture data that is crucial to understanding “wet” water within the state. Known water sources through established water rights will also get an overhaul, in order to increase transparency and accountability within the system, and give a much needed upgrade to a system perpetuated in the Gold Rush era. As noted in the policy, “Other western states…manage water diversions much more nimbly than California, which puts them in a better position to adjust to what many call ‘aridification’– the transition to a drier climate. The ability to adjust diversions quickly also is crucial to protecting fish and wildlife, other water right holders, and public health. To make a century-old water right system work in this new era, the State Water Board needs accurate and timely data, modern data infrastructure, and increased capacity to halt water diversions when the flows in streams diminish.” ^[13] The most promising tenant of the 2022 plan would enable the state to adopt regulations that would allow for curtailments of water rights in years when there is not a declared drought emergency, in contrast with current legislation that only allows the state to take control of rights in emergencies.^[14] This would give the state heightened capacity for adaptive management, instead of retroactively taking control in the event of an emergency. Accountability at the state level will improve the future of California’s water security at a level that will reduce risk, instead of avoiding the issue.

Although California’s action plan will help reduce the need for water and update existing water supply, water should be considered a limit to growth, not a barrier to be overcome. Through multiple decades of water use planning and policy, the state has begun to recognize this fact, though legislation continues to lag behind. To meet these goals, the state should follow similar policies as set forth in water law professor Janet Neuman’s Blueprint for Change, including:

○       Developing water budgets

○       Honest assessment of existing supply (useful life of supply)

○       Possible new sources

○       Future water demands

○       Require water managers/land use planners to operate within those budgets

○       Think about operating on watershed basis^[15]

Professor Neuman writes, “The courts should scrutinize water rights claims in general adjudications and individual actions and ask hard questions about whether uses are truly beneficial and non-wasteful…water agencies need to bite the bullet and aggressively enforce against waste and forfeiture, promote conservation, and give clear legal guidance for an updated beneficial use doctrine.” ^[16]

Governor Newsom’s plan does incorporate some elements of the above suggestions, but it fails to meet the most crucial: operating on a limited, watershed basis. Holistic management of the finite resource within the state is the only means of combating water scarcity, and must be secured on a governmental level.

CONCLUSION

With a population of nearly 40 million people, and an economy that ranked 5th in the world as of 2023,^[17] California depends on a surplus of water for both industrial and public health. Under climate disruption, historically dependable sources of water are becoming more scarce, in comparison to an ever growing population, and increasing economic development. Despite orders and legislation passed to address the crisis, policies aimed at “individual consumption” and initiatives to engage the public are not enough to secure California’s future. The state must address water use at an industrial level, as well as engage in multi-state watershed, or regional planning; it must adapt policy to reflect not only the scarcity of water, but the nature of watershed movement and resource needs.