Student Review of Selected Panels at the 2012 Water Law Symposium “Water and Growth: The Imperative for Sustainable Approaches to Uncertainty”

Session 1A: The Central Valley Project—Subsidized Water for California Farmers?

Shanda Fisher*

MODERATOR:                        

John Leshy, Harry D. Sunderland Distinguished Professor of Real Property Law, University of California, Hastings College of the Law

PANELISTS:   

Paul Kibel, Associate Professor of Law and Co-Director of the Center on Urban Environmental Law, Golden Gate University School of Law;
Jason Peltier, Chief Deputy General Manager, Westlands Water District;
Renée Sharp, Director and Senior Scientist, Environmental Working Group, California Office;
David Sunding, Thomas J. Graff Professor in the College of Natural Resources and Co-Director of the Berkeley Water Center, University of California, Berkeley

Phote credit to Aquafornia.

“Subsidy” is a ubiquitous term with varying definitions in American political discourse. Thus, it is unsurprising that great debate exists over whether the irrigation water that California farmers receive from the Central Valley Project (CVP) is subsidized and, if so, whether it should be. The panel addressed these questions head on.

The CVP is one of the world’s largest water storage and transport systems spanning 450 miles, roughly from Redding to Bakersfield, California. The system boasts twenty dams and reservoirs, eleven hydroelectric plants, and a twelve million acre-foot water holding capacity.[1] On average, the CVP delivers seven million acre-feet of water to the Central Valley that irrigates over three million acres of farmland and provides drinking water to nearly two million consumers.[2]

The U.S. Bureau of Reclamation (Bureau), the largest wholesaler of raw water supplies in the U.S., operates the CVP.[3] The Bureau enters into contracts with water districts and municipalities to provide up to a maximum quantity of water annually. The first round of contracts had forty-year terms, as authorized by the 1939 Reclamation Projects Act.[4] Today, more than 250 contractors in 29 counties in California have long-term contracts for CVP water.[5] Per contractual obligation, CVP water is released from reservoirs and flows through rivers and 500 miles of canals and aqueducts[6] to serve contractors in the Central Valley.

To start the dialogue, Professor John Leshy, Harry D. Sunderland Distinguished Professor of Real Property Law at the University of California, Hastings College of the Law, posed several questions to the group, including: Are California’s farmers being subsidized through their water contracts? Are California farmers paying enough for water?

Jason Peltier, Chief Deputy General Manager of the Westlands Water District, responded that farmers do, in fact, pay enough for CVP irrigation water. To support this claim, Mr. Peltier alluded to the fact that today CVP water is significantly less subsidized than it was historically. Rather than focusing on CVP water subsidies, Mr. Peltier suggested that a more relevant discussion would address the costs associated with water scarcity and shortages, which will inevitably have an increasing economic impact on CVP water recipients.

Renée Sharp, Director and Senior Scientist of the California Office of the Environmental Working Group, noted CVP cost and loan figures. Ms. Sharp and Professor Paul Kibel, Associate Professor of Law and Co-Director of the Center on Urban Environmental Law at Golden Gate University School of Law, determined that only $240 million has been paid to date on a $1.16 billion outstanding CVP infrastructure loan. Ms. Sharp noted the large balance remaining on the loan to illustrate one of the ways California farmers are subsidized: through favorable loan terms. Ms. Sharp also touched on the ability of water districts like Westlands to sell surplus water contracted at a rate significantly below the water market price on the open water market.[7]

Professor David Sunding, Thomas J. Graff Professor in the College of Natural Resources and Co-Director of the Berkeley Water Center at the University of California, Berkeley, described what he considers an improper yet common comparison between CVP water contract and open market rates. According to Professor Sunding, comparing the two is like comparing apples to oranges; the rate a farmer pays under contract for CVP water is significantly lower, but does not include costs borne by the farmer toward CVP infrastructure and maintenance. Professor Sunding also highlighted the evolution of Bureau project financing, which has reduced the level of subsidization in CVP contracts, citing that an acre-foot is currently near $100 compared to $8 per acre-foot rate[8] in 1963.[9]

Professor Kibel discussed international legal issues pertaining to subsidies, specifically potential issues from the United States’ obligations as a member state to the World Trade Organization (WTO). The Agreement on Subsidies and Countervailing Measures defines several types of permissible and impermissible subsidies.[10] Professor Kibel explained that the United States could be in violation of the Agreement if a member country successfully showed harm resulting from an economic advantage California farmers gained by using CVP subsidized water.[11] Interestingly, other member states, such as Brazil, could be violating the same agreement for subsidizing their farmers. 

Attendees left the panel versed in the complex issues surrounding the CVP water and its use for irrigation, and with an answer to the question posed by the panel’s title. The panelists agreed that California farmers receive subsidized water. Future discussions may address reducing or eliminating this subsidy altogether. Regardless, California will continue to address how best to meet the water needs of all users in a sustainable and cost-effective manner.

The California Aqueduct, a key part of the CVP. Photo credit to Aquafornia.

Session 1B: California Water Management Success Stories: The Portfolio Management Approach and Other Advances in Sustainability

Asavari V. Devadiga† 

MODERATOR:                        

Susan Leal, Former General Manager, San Francisco Public Utilities Commission

PANELISTS:

Celeste Cantú, General Manager, Santa Ana Watershed Project Authority;
Jay Lund, Director of the Center for Watershed Sciences and Ray B. Krone Professor of Environmental Engineering, University of California Davis;
Andrew Sawyer, Assistant Chief Counsel, State Water Resources Control Board

Following an introduction by Susan Leal, former General Manager of the San Francisco Public Utilities Commission, the panel began with a dynamic presentation by Celeste Cantú, General Manager of the Santa Ana Watershed Project Authority (SAWPA). Ms. Cantú first discussed SAWPA’s approaches to addressing water supply management challenges. Highlighting challenges associated with population increase, explosive land development, a glut of generated wastes, energy costs, and fiscal crises affecting policymaking, Ms. Cantú urged for change from the “old way of thinking.” Ms. Cantú pointed out the need for future leaders to develop an interdisciplinary skill-set that goes beyond negotiation encompassing legal analysis, environmental planning, and conflict-management.

Ms. Cantú next discussed SAWPA’s “system” approach to addressing water supply and resource management, which utilizes Integrated Regional Water Management Planning principles. This approach recognizes the interrelatedness of water management problems across the watershed and stresses the need to work in concert with nature to address these problems. SAWPA encourages innovation and collaboration in addressing climate change and water quality issues by every stakeholder from residential customers to foresters. Instead of aiming for quick fixes, SAWPA views the relevant problems holistically in terms of watershed-wide objectives, which include improving drinking water and fisheries, maintaining swimmable waters, and promoting productive agriculture. Ms. Cantú said that having a “relationship with our front yards” keeps us informed of our water use and promotes awareness of water needs.

Next, Professor Jay Lund, Director of the Center for Watershed Sciences at the University of California Davis, addressed water management issues at the statewide level. Specifically, he discussed California’s rich adaptation and management options related to water resources. He said that interrelated water resource issues, from water supply and flood control to ecosystem management, should be addressed through coordinated action at the local, state, and regional levels. Coordinating the implementation of water policies across levels of government reduces costs, improves short-term flexibility, supports long-term adaptation, and reduces long-term uncertainties. He also stressed that the diversity of stakeholders cannot be ignored.

Actions at the state and local levels offer different and sometimes complementary advantages. While coordinated activities at the city level can address issues related to traditional residential water supply, water conservation, wastewater reuse, and future conjunctive use within a given area, a statewide portfolio spans water markets throughout the state, allowing for unused water resources in one part of the state to be used in another. For example, during the summer months, Sacramento Valley water districts sell unused water to Southern California and San Francisco Bay Area districts. Additionally, Sacramento Valley water districts contract for water storage in the Tulare Basin. Such conjunctive use, which maximizes the use of available water to balance supply and demand, is decentralized and requires very little new infrastructure. Mr. Lund concluded by stressing the importance of institutional flexibility and the needs to combine analytical and accounting capabilities to improve regulations and make strategic choices, such as removing dams and maintaining floodplain habitats.

Andrew Sawyer, Assistant Chief Counsel at the State Water Resources Control Board (SWRCB), provided the final panel presentation. He highlighted California’s obstacles to meeting current water needs, such as competing water needs, regulatory constraints, and historic systems of water rights. Given the especially high water supply variability in California, Mr. Sawyer recognized water storage as a strategy to address water supply concerns and appropriate certain water rights. He said that water supply strategies must focus on conserving water through water recycling instead of costly desalination or dam projects. He pointed out the effects of water conservation, showing that water use in Los Angeles remained virtually unchanged at 600 acre-feet from 1990 to 2010. Mr. Sawyer concluded by stressing the importance of setting performance standards and establishing certain water management goals.  

Session 2A: The Water-Energy Nexus: Integrated Water Resource Management

Kristian Corby‡

MODERATOR:

Steven Weissman, Center for Law, Energy, & the Environment and University of California, Berkeley School of Law

PANELISTS:   

Martha Davis, Executive Manager for Policy Development, Inland Empire Utilities Agency;
Cynthia Truelove, Senior Water Policy Analyst, California Public Utilities Commission;
Lorraine White, Water-Energy Program Manager, GEI Consultants, Inc.

Power lines in the Central Valley. Photo credit to Aquafornia.

The Water-Energy Nexus: Integrated Water Resource Management session was overwhelmingly positive. The panel members, including Martha Davis, Cynthia Truelove, and Lorraine White, were all proponents of comprehensive resource management and extolled its virtues. They made it clear that leveraging the water-energy nexus with comprehensive resource management will produce real benefits.

The session began with a question: “What do you think of when you hear the phase water-energy nexus?” Hydroelectric power came to my mind; I pictured dams, turbines, and power lines leading to and from a large reservoir. However, while hydroelectric power is a physical example of the water-energy nexus, the concept is more profound. The water-energy nexus is the recognition of the interdependent relationship between water and energy. Like a mirror within a mirror, for every use or waste of water there is a corresponding use or waste of energy, and vise versa. Society can take advantage of the water-energy nexus through comprehensive resource management. Comprehensive resource management identifies areas during project planning where resources can be used most efficiently. The panel emphasized that through identification of these areas early in a project’s development, the benefits of each resource can be maximized.

The panel agreed that California currently does not manage water and energy comprehensively, and is therefore missing opportunities to reduce waste and improve efficiency. In arguing that more empirical data is needed, the panel put forth the rule: we don’t manage what we don’t measure. They noted that as recently as five to ten years ago the water and energy utilities began measuring factors that contribute to the use and waste of both resources. These measurements and the resulting empirical studies have helped the utilities identify where waste occurs. In an earlier session, the keynote speaker, Frances Spivey-Weber, Vice-Chair of the State Water Resources Control Board, noted that although science cannot provide a simple answer for how to improve water resource policies, science is the foundation upon which we can build the answer. Congruently, the utilities’ initial studies can provide the foundation upon which comprehensive resource management practices are built. Once these practices are refined and implemented, the benefits from the efficient use of water and energy will become a reality.

Comprehensive resource management is especially important in California because of the high demand for the state’s water supply. The panel explained that because water is so harshly fought over, energy development is discouraged. Through comprehensive resource planning, water will be used more efficiently, therefore alleviating the stress placed on the scarce resource. The panel reiterated that water and energy utilities needed to coordinate early in the planning process to maximize the benefits of each resource. 

However, one hurdle to creating comprehensive management plans for water and energy is that separate regulations, or “separate regulatory silos,” independently control each resource. Thus, the solution requires policies that take into account the interconnected demands placed on both resources and collaboration through cross-referencing both regulatory silos. The panel acknowledged that although the coordination of policies and regulations will be difficult, it should not prevent the endeavor because significant cost and efficiency benefits can be realized through managing resources comprehensively.

Prior to establishing a new statewide policy or new regulations that coordinate resources, early communication and a willingness to cooperate between key stakeholders can ensure that utilities reap the benefits from recognizing the water-energy nexus. The session emphasized that water and energy are interrelated and recognition of this connection can produce real benefits for society. Despite the lack of mandating comprehensive management plans in California, the panel noted that the State leads the nation in energy efficiency programs. Cynthia Truelove explained that once comprehensive management plans are realized and implemented, California would excel with energy efficiency at an even faster pace. 

Session 2B: Achieving Water Sustainability in a Changing Climate

Asavari V. Devadiga§ & Jenneen Hartshorn**

MODERATOR:

Richard Frank, Director, California Environmental Law and Policy Center, University of California, Davis School of Law

PANELISTS:

John Andrew, Assistant Deputy Director of the California Department of Water Resources;
Jay Lund, Director, Center for Watershed Sciences and Ray B. Krone Professor of Environmental Engineering, University of California Davis;
Michael Tognolini, Manager of Water Supply Improvements, East Bay Municipal Utility District

Salmon swimming upstream to spawn. Ecosystem management and conservation will be further complicated by climate change and warming waters. Photo credit to Rose Robinson.

The panel, which focused on achieving water sustainability in a changing climate, detailed several challenges to managing the impact of climate change on water resources in California. Richard Frank, Director of the California Environmental Law and Policy Center at the University of California, Davis, School of Law, introduced the panel by briefly speaking about the effects of the melting Himalayan glacier on the Indian subcontinent. Next, he laid out how climate change presents challenges and issues for California, including decreasing snowpack, changes in precipitation levels, increasing risks of erosion and landslides, water supply concerns, and flood safety. Richard Frank’s presentation was followed by a short panel discussion on the potential effects of the projected population increase in California, estimated by the California Department of Finance to be 50 million by 2030 and 60 million by 2050.

The first panelist, John Andrew, Assistant Deputy Director of the California Department of Water Resources, noted that California is no stranger to changes in climate. In fact, California’s climate has fluctuated throughout history, including periods of severe drought. Fundamentally, a changing climate does not reflect the “new normal.”

Mr. Andrew discussed challenges and sustainable solutions to managing water supply in the face of climate change. He noted that the process of state agency decision-making now includes consideration of climate change. Under the California Environmental Quality Act, state agencies must consider the impact of greenhouse gas emissions for certain proposed projects. Climate change’s political acceptance is changing the way California plans for the future.

Another example of this incorporation is the 2009 California Climate Adaptation Strategy, which was developed by several state agencies to address climate change and discusses the need for data on assessing the vulnerability of the population and existing structures in order to develop an approach to reducing and adapting to such vulnerabilities. The report highlights the link between state-led guidance on sustainability and local and regional efforts in certain sectors, including water, agriculture, transportation, and energy. One challenge to implementing sustainable policies is that although there are funds available for the climate change mitigation, the funds available for adaptation to climate change risks are limited.

Next, Jay Lund, Director of the Center for Watershed Sciences and Ray B. Krone Professor of Environmental Engineering at the University of California Davis, discussed the effects of climate change on sea level. He asserted that sea level rise, the most certain proof of climate change, threatens California’s coastal areas and deltas. According to the 2009 California Climate Adaptation Strategy report, sea levels have risen on California’s coast by nearly seven inches in the last 100 years, impacting the region’s water resources and infrastructure.[12]

According to Prof. Lund, climate change also complicates the management of certain ecosystems. For example, climate change affects the management of fish species, since it contributes to changes in water temperature and limits accessibility to cold water for spawning. Consequently, ecosystem management and conservation will remain a challenging and complex task.

Prof. Lund said that strategic policy management of the effects of climate change on water resources can help avoid catastrophic impacts. He said that climate change will exacerbate cost-management challenges related to water supply, flood control, and hydropower. California has great potential to adapt to weather changes with a diversity of water management systems, water resources, and local experts. He suggested that the best way to sustain our water resources is to increase the flexibility and responsiveness of California’s water supply under a common management system. He noted that certain local agencies have already made incremental improvements to these systems, but further consolidated effort is essential.

To conclude the panel, Michael Tognolini, Manager of Water Supply Improvements at the East Bay Municipal Utility District (EBMUD) provided a perspective on water supply management in the face of climate change from a local utility district. Following a brief overview on EBMUD’s water and wastewater services provided in the East San Francisco Bay Area, Mr. Tognolini described the potential effects of climate change on EBMUD’s operations. He said that sea level rise increasingly threatens facilities such as the Main Wastewater Treatment Plant, located in Oakland at the northeast shore of San Francisco Bay. Meanwhile, higher temperatures are causing subsidence of the peat soils in the Sacramento-San Joaquin Delta region, which threatens the Mokelumne Aqueduct and Pardee Reservoir. Since the Mokelumne Aqueduct and Pardee Reservoir are the primary sources of water supply for the EBMUD service area, EBMUD has collaborated with other local agencies such as the Contra Costa Water District and San Francisco Public Utilities Commission to help supplement water supply during crises.

Mr. Tognolini reviewed a study that addressed how various climate change scenarios could affect EBMUD’s facilities, including a ten million gallon-per-day increase in water demand and a 20 percent reduction in runoff into the watershed. The portfolio addressed uncertainties and goals in establishing a reliable water supply. The various possible outcomes included shifts in springtime runoff and reductions in precipitation and runoff, which could affect water supply. Mr. Tognolini explained that the study aided the development of a water supply management portfolio for EBMUD.

Mr. Tognolini stated that EBMUD’s current portfolio includes expanding potential partnerships with other utilities, increasing water sources, and investing in improving technologies. He likened this strategy to spreading risk in an investment portfolio. He noted, however, that a local utility such as EBMUD has limited ability to cope with a major drought.

Mr. Tognolini concluded by discussing a new 2040 Water Supply Management Program, which will be considered for approval in March 2012. This program would double EBMUD’s previous conservation and recycling goals. In addition, the program would identify opportunities for groundwater storage near San Leandro and a regional desalination project in the Sacramento-San Joaquin Delta to reduce environmental impacts.

Overall, the panel assured the audience that although climate change and sea level rise are already occurring strategic planning can help mitigate global warming’s greatest risks to California, but the state must continue preparing for an uncertain future.

Panel 3B: Best Practices For Managing California’s Water Banks In The Future: Saving For A (Non)Rainy Day

Anuradha Sivaram††

MODERATOR:            

Lloyd Carter, President, California Save Our Streams Council

PANELISTS:   

Adam Lazar, Staff Attorney, Center for Biological Diversity;
Stanley C. Powell, Associate Attorney, Kronick, Moskovitz, Tiedemann & Girard and registered civil engineer and geologist;
Frank Wolak, Director, Program on Energy and Sustainable Development and Holbrook Working Professor of Commodity Price Studies, Department of Economics, Stanford University

The Semitropic Water Bank, located in the sourthern end of the San Joaquin Valley. Photo credit to Aquafornia.

Describing California as a “desert civilization” and recognizing the state’s unreliable rainfall patterns, this panel discussed a number of issues related to managing and storing groundwater in underground aquifers. Stanley Powell, Associate Attorney at Kronick, Moskovitz, Tiedemann & Girard and registered civil engineer and geologist, began the presentation with a comprehensive overview of the objectives and benefits of groundwater banking. Groundwater banking is the storing of water in underground aquifers for the purpose of recovering it for beneficial use during periods of water scarcity. Mr. Powell presented a graph displaying the variance from year to year of California’s annual available water supply from 1983 to 2003. On the graph, Mr. Powell superimposed estimates of the state’s annual water demand, which remained flat throughout the measurement period. Mr. Powell used the graphic to explain that surplus water supply in wet years may compensate for shortfalls in water supply in dry years if injected into aquifers with spare capacity.

Mr. Powell next outlined several benefits and hazards of storing water underground, as opposed to dams or reservoirs. Such benefits include avoiding evaporation, reducing ecological impacts from surface impoundments, and saving pumping costs that accrue from transferring water above ground. On the other hand, groundwater banking plays a role in raising water table levels overall in an aquifer. This phenomenon is problematic because it can lead to excessive moisture levels in the root zones of crops and interfere with gravel operations unearthing sand and gravel for use in construction projects.

Next, Adam Lazar, Staff Attorney at the Center for Biological Diversity, lectured on the history of groundwater banking. He noted that state rules and precedents differ with regards to the use and withdrawal of water from an aquifer. California sets a sale price for banked groundwater and has made “millions” from the sale of water. Mr. Lazar then highlighted various challenges to water projects in California. He discussed litigation over water rights arising from transfers from the Kern Water Bank and flagged issues related to planned water projects in other locales such as Madera County. In particular, he explained how the pricing scheme leads to inefficient water allocations. Current policies allow farmers to pay the same price to purchase an acre-foot of clean groundwater as the state pays to replace that acre-foot of water with lower-quality, turbid water obtained from the Colorado River Project. Consequently, the state treats low- and high-quality groundwater as equal for the purpose of accounting for exchanges.

Next, Frank Wolak, Director of the Program on Energy and Sustainable Development and Holbrook Working Professor of Commodity Price Studies in the Department of Economics at Stanford University, explained the advantages of implementing a “local marginal pricing” scheme for water transfers. This is a novel method of calculating accurate commodity prices, originally used to value electricity on the wholesale market. Mr. Wolak analogized the movement of water in an aquifer to the movement of electrons in the electricity grid to illustrate why water prices should reflect the relationship between supply and demand.

Mr. Wolak explained that “local marginal pricing” schemes can incorporate restraints imposed by physics, environmental concerns, supply, and demand to determine the proper price of water in an aquifer. This would take into account its scarcity and would increase the efficiency of water transfers, helping water markets function more smoothly. Mr. Wolak said that the implementation of a local marginal pricing program might save the state money, similar to the way in which the introduction of these schemes reduced the operating costs of electrical utilities.

At the end of the session, Lloyd Carter, President of the California Save Our Streams Council and former reporter for United Press International and the Fresno Bee, took questions from audience participants. The queries elicited a discussion of whether groundwater withdrawn from water banks is governed by the public trust doctrine, which would impose a duty on the government to maintain aquifers for the public’s reasonable use. Since groundwater withdrawals affect surface waters and thus impact riparian areas, some participants suggested that water banks should be managed according to this principle. 

Overall, the panelists seemed hopeful about the benefits of groundwater banking. Still, they exhibited only cautious optimism, expressing concern about unresolved legal issues related to the withdrawal of banked water and establishing priorities of different users.  

Session 4A: Can California Afford to Declare a Human Right to Clean Drinking Water?

Tovah Trimming‡‡

MODERATOR:

Tony Rossmann, Lecturer, University of California, Berkeley School of Law

PANELISTS:   

Laurel Firestone, Co-Director, Community Water Center of California’s San Joaquin Valley;
Rose Francis, Co-Director, Community Water Center of California’s San Joaquin Valley;
Vern Goehring, Legislative Advocate, Food and Water Watch;
Whitnie Henderson, Legal Counsel, Association of California Water Agencies

Report on a UC Davis study of California's drinking water, which found harmful levels of nitrate contamination in agricultural areas. Video credit to UC Davis.

The focal point of the panel’s discussion was Assembly Bill 685 (A.B. 685)[13]. The policy statement of the bill states that “every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes . . . .” The powerful language incorporated into A.B. 685 reflected the sentiment embodied in such documents as the United Nations General Assembly Resolution 64/292 on the human right to water and sanitation[14] and the South African Constitution. While subsections of A.B. 685 limit the scope of the state’s obligation, opponents are concerned that the limitations are not sufficient to eliminate potentially adverse impacts on the state if the bill were to pass. 

The first panelist was Vern Goehring, a legislative advocate for A.B. 685 on behalf of Food and Water Watch—a national consumer interest organization that seeks to ensure safe, accessible, and sustainably sourced food and water. Mr. Goehring stressed the need to establish a human right to clean drinking water. He maintained that the cornerstone justification for A.B. 685 is the critical relationship between safe drinking water, quality of human life, and human dignity. The consequences arising from a lack of safe drinking water include individual and family illness, absenteeism from work and school, adverse fiscal impacts on school districts and families who must seek alternative water sources, and child obesity due to the increased consumption of sugar-sweetened beverages. Mr. Goehring explained that low-income communities particularly feel these impacts. As such, A.B. 685 is a commitment towards universal access to clean and safe drinking water to promote the health, dignity, and prosperity of California’s less advantaged communities.

The second panelists, Rose Francis and Laurel Firestone,[15] are proponents of A.B. 685 and Co-Directors of the Community Water Center—a non-profit organization seeking to ensure that all communities have access to clean and affordable water. Ms. Francis addressed concerns from opponents of A.B. 685, including increased state agency expenditures, possible legal liability, and the alleged superfluity of the bill. In response to the first two points, Ms. Francis stated that the policy statement of A.B. 685 must be read in conjunction with the bill’s subsections, which limit the scope of the state’s obligations. Under A.B. 685, the state is not required to supply water or impose pricing restrictions on water providers. Further, she pointed out that it is unlikely that litigation will ensue unless the agency blatantly ignores the policy statement obligation. Ms. Francis then addressed the criticism that A.B. 685 is unnecessary. Opponents surmise that the existing California Water Code Section 106, enacted in 1943, is a sufficient cornerstone of California’s water rights system in its declaration that “water for domestic purposes is the highest use of water.”[16] However, Ms. Francis maintained that the necessity of A.B. 685 lies in its contemporary focus on marginalized and vulnerable communities.

Ms. Francis went on to explain the usefulness of A.B. 685. She stated that it sets a clear objective of ensuring universal access to clean and safe drinking water for relevant state administrative agencies to follow. She noted that California is a national leader in environmental protection and now has the opportunity to be a leader and innovator in water justice.

The final panelist was Whitnie Henderson, Legal Counsel for the Association of California Water Agencies and opponent of A.B. 685. Ms. Henderson discussed her concern that A.B. 685 could negatively impact water providers. Specifically, Ms. Henderson expressed concerns regarding the bill’s potential fiscal impacts and risks of state liability. Additionally, she asserted that sufficient statutory laws currently exist and there is no need for the new bill. Ms. Henderson concluded that proponents and opponents share the same goal of providing safe and reliable drinking water to California communities. Consequently, they should have worked together to ensure enforcement of the existing drinking water regulations instead of attempting to enact a new bill.

The panel agrees that ensuring adequate drinking water requires collaboration between state agencies and water rights advocates. And while the panel disagrees that A.B. 685 is the appropriate mechanism for such collaboration at this time, the shared goal of adequate drinking water will hopefully result in the advancement of the objective under alternative mechanisms.

The clear water from East Orosi is more contaminated than the murky water from Ducor, both in California. Photo credit to Erin Lubin.

Session 4B: Effective Groundwater Monitoring and Management in California: SBX7-6 as the First Step in the Long Road Ahead

Dimitri Rizek§§

MODERATOR:

Paul Kibel, Associate Professor of Law and Co-Director of the Center on Urban Environmental Law, Golden Gate University School of Law;

PANELISTS:   

Nicholas Jacobs, Attorney, Somach, Simmons & Dunn;
Barry Nelson, Senior Water Policy Analyst, Natural Resources Defense Council;
Mary Scruggs, Supervising Engineering Geologist, California Department of Water Resources

Paul Kibel, Associate Professor of Law at Golden Gate University and moderator of the panel on SBX7-6, was intent on sparking a heated discussion between Barry Nelson, Senior Water Policy Analyst from the National Resources Defense Council (NRDC), and Nicholas Jacobs, Attorney from Somach, Simmons, and Dunn, who represents regulated agencies. Mary Scruggs, Supervising Engineering Geologist from the California Department of Water Resources (DWR), provided background to the discussion based on her experience with the implementation of SBX7-6, which calls for voluntary seasonal reporting of water table elevations from all basins and subbasins in California.

Mr. Kibel introduced the topic by contrasting groundwater regulation with that of surface water regulation. He believed that groundwater monitoring did not exist because, historically, the state was not reliant on groundwater and it was difficult to determine water table levels. However, Mr. Kibel believed that this reasoning is no longer accurate and sees SBX7-6 as the beginning of a long road towards a more comprehensive management of California’s aquifers. 

Barry Nelson spoke first, referencing the problems associated with groundwater in California. Roughly 10 percent of California's annual water supply comes from groundwater that is not replenished. He sees SBX7-6’s passage as an indication that politicians are no longer afraid of approaching the issue of groundwater management, thereby indicating increased participation by the state in the future. However, Mr. Nelson lamented that the final draft of the bill was not grounded in the Public Trust Doctrine, which requires the state to protect public water bodies.[17]

Next, Mary Scruggs shared her experiences with the California Statewide Groundwater Elevation Monitoring (CASGEM) program, which implements SBX7-6. This program is designed to improve the state’s understanding of groundwater table elevations by encouraging local entities to conduct seasonal monitoring and to make the data accessible in a public online database.[18] Although monitoring and reporting is voluntary, the DWR can deny local agencies access to state water bonds to motivate performance. The monitoring entities currently cover eighty-nine non-overlapping basins and subbasins and many more applications are under review. 

Following Ms. Scruggs, Nicholas Jacobs spoke on behalf of his clients affected by the legislation and described the reaction to SBX7-6 as "cautiously neutral." He argued that the CASGEM program would have little practical effect because many local agencies are already monitoring groundwater, particularly in basins experiencing overdraft. However, the real worry for his clients was that this monitoring is a precursor to "slow" and "cumbersome" state regulation.

 Mr. Kibel began the questioning by asking whether the Association of California Water Agencies (ACWA) should play a role in facilitating local groundwater management. Mr. Nelson responded that ACWA’s plans were promising, but regional plans needed to become more robust in order for regional management to function effectively. Next, Mr. Jacobs reiterated his clients' opposition to state regulation, explaining there is nobody more concerned with the sustainability of aquifers than the farmers who depend on them; thus, regions should each approach regulation in their own way.

An audience member asked the panelists to give their thoughts on the applicability of the Public Trust Doctrine to groundwater management. Mr. Nelson responded that NRDC believes that the state has more power than it is currently using, although the full extent of the jurisdiction has yet to be determined by the courts. Mr. Jacobs dismissed the audience member’s suggestion that the state constitutional provision against unreasonable use or unreasonable method of diversion should apply to groundwater. Mr. Jacobs stated that his clients would not “volunteer to be regulated” and are ready to challenge the state's authority in court if necessary.

The panel closed with the speakers giving their perspective on the way forward for groundwater regulation. Ms. Scruggs advocated for more proactive action by local agencies and to avoid the current expensive adjudications. Mr. Nelson believed that the state's physical and legal diversity warrants a nuanced approach to regulation. Mr. Jacobs agreed, but maintained that any fundamental changes to the system, such as permitting requirements, would lead to chaos.

Provocative questions and a contentious subject matter led to an energetic and interesting panel. The speakers were able to find some common ground on the subject of local enforcement, but there was disagreement over virtually all aspects of statewide management. The regulated entities, from farmers to cities, do not want to lose the freedom to manage their own resources, while the increasing urgency of the groundwater situation has organizations such as NRDC calling for more involvement. Whether the state has the responsibility, or even the authority, to impose tougher regulations is a question that will likely take years for the courts to settle.

 

Copyright 2012. All rights reserved.

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