Responding to Drought: Calls for Change and Recent Reforms in California

Despite the recent above-average rainfall in Northern California, the state is currently in its fifth year of severe drought.  Although two of the state’s largest water reservoirs, Shasta and Oroville, have recently filled up to ninety-percent capacity, and heavy snowfall over the mountains has improved conditions in the northern part of the state, one fifth of California still remains in the deepest category of drought.

While experts have predicted that Southern California is in for a hot and dry winter—which is usually California’s wettest time of the year—La Niña conditions mean that Northern California could experience winter storms, which would allow for average or above-average snowfall in the Sierra Nevada mountain range.

In response to these anticipated conditions and water scarcity concerns, California is attempting to adapt its water laws not only to withstand the current drought conditions, but also to better prepare for future droughts.  Rather than focusing solely on how to get more water to their citizens, much of the efforts aim at revising outdated policies and addressing long-standing issues.

Calls for Change:  An Outdated System?

California water law is a hybrid of the prior appropriation system and riparianism. Although California water law recognizes both riparian and appropriative rights, the former is given priority over the latter. This hybrid system works best when there is an abundance of water and a smaller population.  However, with today’s warmer climate, drier conditions, and upwards of thirty-nine million residents currently living in California, many say that the state’s water allocation system is becoming outdated and inefficient.

Most water rights in California, including those held by municipalities and agricultural users, are appropriative water rights, rather than the senior riparian rights, because the property is not located near a river or stream. During times of drought, those with junior water rights have their ability to use water curtailed so that senior water right holders receive the share of water to which they are entitled.  There are a number of issues that stem from this “first in time, first in right” system, and residents are increasingly pushing courts and the state legislature to make some changes.

One issue exists between the agricultural sector, which owns a majority of the states senior appropriative water rights, and municipalities, that in most cases, were granted water rights later than agricultural appropriators and therefore have rights that are junior to those belonging to farmers and ranchers.  Critics of the state’s water allocation system argue that the inequality between “senior” and “junior” right owners impedes the state’s ability to efficiently allocate the scarce water supply.

Real Change: Conservation, Enforcement, and Public Records

This past year, for the first time in the state’s history, California implemented a statewide mandate restricting residential water use by twenty-five percent. Although there was backlash to imposing the restrictions, the state saw an overall improvement in the implementation of conservation measures and drought predictions. For example, the Metropolitan Water District of Southern California, which supplies the state’s largest city, Los Angeles, and twenty-five other cities and districts with water, expects to provide users with about three-fourths of their water supply. Additionally, the district plans on replenishing depleted underground reservoirs and setting aside more excess water for storage. However, despite these efforts to increase conservation, California lifted the restrictions this past June due to slight improvement in drought conditions. Since lifting the restrictions, urban water consumption rates rose nearly 10 percent from the previous year.

Although California’s urban water suppliers have complied with the water usage regulations, very few state agencies have agreed to penalize customers for using excessive amounts of water. Furthermore, due to California’s stringent public records law, utility companies do not have to disclose the names of the largest water users. During the recent drought, mega-users have used these public records laws to protect their identities from public scrutiny.

In response, the state has enacted SB 814, which requires water districts to enforce restrictions on excessive water use. Under this new law, agencies are now required to set limits on residential water consumption. Residents can pay fines of up to $500 for every 758 gallons of overuse. Furthermore, the names of violators will be made public. However, this law only takes effect when the state is in a drought emergency.

In addition, the state is attempting to tackle its water issues with The Open and Transparent Water Data Act (AB 1755). The legislation was enacted in 2016 and focuses on updating the state’s water information system by providing a more transparent and efficient system for managers to obtain more comprehensive water data.  Currently, all levels of governmental agencies collect such water data, which can be inefficient, and may also lead to inaccessible and incompatible data.  Under the new system, all new and pre-existing water datasets will be integrated on a statewide online water information platform to provide managers with fuller information on water transfers. Supporters of the bill see it as a critical step in ensuring the long-term sustainability of the state’s limited water supply.

By providing comprehensive data, this new legislation will also help with the implementation of California’s groundwater law, the Sustainable Groundwater Management Act.  In the past, California did not require water users to report their groundwater usage or restrict its use despite declining groundwater levels.  During times of drought, groundwater makes up for about sixty percent of the state’s water demands, and excessive pumping has caused the land in some regions of California to experience subsidence of up to ten feet.

Notably, researchers have just discovered a new source of groundwater that is approximately ten thousand feet beneath Central Valley. Although this is still a relatively new finding, residents have expressed concerns that pumping this water could exacerbate the already-existing issues with pumping groundwater. However, the state’s groundwater law requires users to establish groundwater sustainability agencies that will regulate manage and monitor groundwater pumping in the future, which may help to solve many of these problems.

In the coming years, California hopes to create a more efficient and effective way to allocate, regulate, and maintain the state’s scarce water supply. The newly enacted legislation is a first step in reaching the goal of getting out of the current drought and better preparing for the future.

                                                                                                            Alicia Garcia

Image: The Lake Sonoma marina in Northern California. Flickr user David McSpadden, Creative Commons.

 

Sources:

David Gom, NOAA’s Winter Forecast Says no Rain for you, Southern California, SOUTHERN CALIFORNIA PUBLIC RADIO, (Oct. 20, 2016), http://www.scpr.org/news/2016/10/20/65704/noaa-s-winter-forecast-says-no-rain-for-you-southe/.

Matt Stevens, Califonria’s Heavy Water Users Could Face Penalties if Drought Persists, L.A. TIMES, (Sept. 2, 2016), http://www.latimes.com/local/lanow/la-me-ln-water-wasters-20160831-snap-story.html.

Ellen Knickmeyer and Amy Taxin, Officials Maintain Conservation Message Despite California’s Drought Divide, CLAIMS JOURNAL, (Nov. 8, 2016), http://www.claimsjournal.com/news/west/2016/11/08/274794.htm.

Kirsten James, California’s New Water Data Law Will Have Far-Reaching Benefits, NEWS DEEPLY, (Oct. 11 2016), https://www.newsdeeply.com/water/community/2016/10/11/californias-new-water-data-law-will-have-far-reaching-benefits.

Tara Lohan, Legislative Update: 6 New California Laws Impacting Water, NEWS DEEPLY, (Oct. 20, 2016), https://www.newsdeeply.com/water/articles/2016/10/04/legislative-update-six-new-california-laws-impacting-water.

Mark Drew, Community Voices: New Legislation Key to Water Management, (Nov. 4, 2016), http://www.bakersfield.com/opinion/community-voices-new-legislation-key-to-water-management/article_8e655c02-1cdc-5f66-aab2-3b8683792477.html.

California Drought: Impacts and Solutions, http://www.californiadrought.org/drought/current-conditions/ (last visited Nov. 4, 2016).

Weston Phippen, California’s New Drought Rules, THE ATLANTIC, (May 10, 2016), http://www.theatlantic.com/national/archive/2016/05/california-water/482064/

Marr Stevens & Bettina Boxall, Some Emergency Drought Rules Might be Eased But Don’t Start Hosing Down Sidewalks, L.A. TIMES, (May, 2016), http://www.latimes.com/local/lanow/la-me-ln-water-conservation-20160509-story.html.

Kevin Haroff, The California Drought and Its Impact on State Water Law and Policy, MARTEN LAW, (July 28, 2015), http://www.martenlaw.com/newsletter/20150729-california-drought-state-water-law-policy.

Richard M. Frank, Another Inconvenient Truth: California Water Law Must Change, S.F. CHRONICLE, (Apr. 10, 2015), http://www.sfchronicle.com/opinion/article/Another-inconvenient-truth-California-water-law-6192703.php.

Kristin L. Martin, They Can Have My Hose When They Pry It From My Cold Dead Hands: When California is Faced With a Drought, Who Gets Water and Who Goes Without?, Texas Envt’l. Law Journal Vol. 47, (Apr. 25, 2016) http://dx.doi.org/10.2139/ssrn.2769640.