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Justice Ronald B. Robie
January 23, 2016
Professor Harder and Dean Mootz —
I am deeply honored to participate in this Symposium, the first held at Pacific/McGeorge. The phrase “The New Normal” is a truly appropate way of looking at where we are now in California Water.
I: California Water Rights and Enforcement Problems
To place my remarks in perspective I would like to go back to the beginning and summarize California’s truly wacky and until now at times dysfunctional water rights system.
First of all, alone among Western states we still have riparian rights, notwithstanding all the problems with these rights. We have limited knowledge of their extent which in theory is limited to the smallest parcel in single ownership over the last 166 years.
Second, we still have a common law groundwater rights system (City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1224) that has enabled massive overdrafts in large areas of the state, creating a law of the jungle, particularly in times of shortage. Time consuming adjudications (the Antelope Valley adjudication — which just concluded — took 15 years) are not an efficient means of resolving overdraft. While the Legislature in 2015 enacted a procedural groundwater adjudication law to streamline these adjudications, this law did nothing to deal with the deficiencies of our basic groundwater law.
Furthermore, even though it has been demonstrated in many areas there is a direct relationship between groundwater pumping and interconnected stream flows and vice versa. Up until passage of the Sustainable Groundwater Management Act (SGMA) in 2014 this relationship has not been recognized in California law except by litigation on a case-by-case basis. Most Western states regulate both surface and groundwater jointly because their basic surface and groundwater laws are compatible.
Although this new law does nothing to change the common law of groundwater rights it does offer a somewhat long term opportunity for communities overlying groundwater basins to develop plans for basin sustainability, including reduced pumping and elimination of unreasonable effects on interconnected surface waters. This law offers the real hope that these plans will ultimately eliminate long term overdraft and problems such as land subsidence.
But, I do not want my response to this new law to obscure the fact that its mere adoption was a monumental accomplishment, given the decades of complete resistance to any regulation of groundwater in any form.
But a few more words about our water rights system. We still have many pre-1914 appropriative rights out there about which we in the past largely knew little. Post-1914 water rights we know a lot more about but until recently not enough either.
It is understandable that given this hodgepodge of rights, coherent management has been difficult, and until recently less than successful.
It is true that we have article 2, Section X of our constitution and the public trust doctrine (National Audubon Society v. Superior Court (1983) 33 Cal. 3d 419) to bring flexibility and a recognition of instream values in water rights administration. But they have been a significant factor in only a few cases (such as the Mono Lake Case and the waste of water in the Imperial Valley) — up until now.
Last September an article in a Southern California newspaper summarized why there have been no significant changes in water rights law:
The State’s longest-standing rights holders-especially upstate farmers — but also cities and water agencies — have long resisted even the smallest changes to a system that has benefitted them for a century. As it stands, rights holders can take water from rivers and streams with little oversight, and little scrutiny of how much they’re taking.1
This quote illustrates well that until now, the single greatest problem with the administration of water rights in my opinion has been uncertainty. That is, significant gaps in our knowledge of what surface and groundwater diverters were doing. But as the Bob Dylan song goes, “The times They are a-changing.”
II: The New Normal
This brings me to “the new normal.” What is different now and in going forward from the picture I have painted in the first part of these remarks?
There has been a remarkable combination of circumstances- some planned and some thrust upon us.
First and foremost is the current DROUGHT. We have had droughts before. I recently reread Carey McWilliams excellent 1949 book on our state, California, The Great Exception, and he bemoaned the lack of action over the great drought of 1948!2 He particularly noted the terrible land subsidence in the San Joaquin Valley.
I know firsthand what a severe drought means to the state since I survived the 1976-77 drought — the most severe in history until the current one, which is not over yet. But that drought was 38 years ago. Recognizing problems with our water rights system, in the aftermath of that drought Governor Brown established a Commission to Review California Water Rights law to tackle most of the issues I have just discussed. A series of significant and innovative solutions were proposed and promptly relegated to the dust bin. No fundamental changes were made in surface and groundwater rights or their administration. Subsequently, little was done to reduce uncertainty since uncertainty is the best way for water right holders to avoid Water Board scrutiny.
Notwithstanding the inaction as memories of that drought quickly faded, since 1977 we were lulled into a new sense of complacency as to problems with our water rights system by innovative water management in the field — 1) water transfers, 2) planned groundwater storage and water banks, 3) new surface terminal storage of already developed supplies, 4) significant water conservation, particularly in urban Southern California, 5) Creation of the Delta Watermaster, and, 6) careful management of the state and federal water projects.
Thus, in spite of no new on stream surface storage, the enormous population growth of our state and an increase in irrigated agriculture in the last four decades, we got by pretty well — largely avoiding the problem of uncertainty until the drought hit and brought our folly home.
Necessity has always been the mother of invention, and I am really pleased with the significant actions which were taken in response to this drought — first and foremost by the Governor and the Water Resources Control Board. As an aside, next year the Board will celebrate its 50th Anniversary! Little did I know when I wrote the report recommending creation of the Board what a history it would have.
This year, with the help of 1) Emergency drought declarations by the Governor, 2) statutory changes to bring more certainty to what is going on out there, and 3) significant court decisions affirming the Board’s authority to limit exercise of rights to what they are legally entitled to, the Board managed the drought very well indeed considering the limitations of the law!
Let me briefly mention these factors in reverse order.
First — Three significant court of appeal decisions —
Young v. State Water Resources Control Board (2013) 219 Cal.App.4th 397 (3rd. Dist.)
Light v. State Water Resources Control Board (2014) 226 Cal.App.4th 1463 (1st Dist.)
Millview County Water District v. State Water Resources Control Board (2014) 229 Cal.App.4th 879 (1st. Dist)
These opinions make it clear the Board can utilize the constitutional provision and the public trust and has the authority to require reduction or elimination of diversions when water is not available. And these cutbacks can be made to protect in stream resources — primarily fish. Surprisingly, up until recently there were very few opinions out there dealing with these issues. They came just in time.
Second — Statutory Changes to make more information about water use by right holders available:
A) Senate Bill 88 (Chapter 27, stats of 2015) adds more frequent and more comprehensive measurement and reporting requirements for a substantial number of California water rights holders and claimants (approximately 12,000) using 10 acre feet or more a year. This bill requires annual reporting from those claiming riparian as well as pre-1914 appropriative rights.
In its resolution adopting emergency regulations for these measuring and reporting requirements, Felicia Marcus, Chair of the Water Board stated “Knowing where, when, and how much water is being used is essential to managing the system fairly for all.” She called the new requirements “a common sense move.”
Although the reporting and measuring requirements vary with types of users, they represent a significant change from the previous law. Measurement requirements vary from hourly to monthly depending on diversion size.
With these data, together with longstanding information as to federal and state water project operations, the water board will be able to accurately model and assess the water supply and demand situation to properly manage the priority system. I hope more water right holders will have confidence in the Board’s management when they know the Board really knows what is going on.
But, even with these changes, enforcement of water rights cutbacks during drought is often frustrated because so many bodies of water (especially the entire Sacramento San Joaquin Delta) have water in the stream which is not natural flow but water released from upstream storage. Historically, water rights only extend to the natural flow. In places like the Delta, a claimant looks in the stream and sees water and just assumes his or her right applies. Not necessarily so. This issue was brought home to me when the San Francisco Chronicle published an article this week on the new water right reporting requirements and quoted a Delta farmer as saying ” I have riparian rights. I should be able to get as much water as I need, to do what I need to do.”3
B) Legislation lifting the veil of secrecy of well drilling logs. (Water Code ยง13752 (subd. (a).)
C) Passage of a new statutory procedure for groundwater adjudications (2015 Cal Stats. ch 672, AB 1390) and legislation to coordinate the new adjudication procedures with SGMA (2015 Cal Stats. ch 676, SB 226). Hopefully the new statutory adjudications will move faster than previous ones. And although SGMA sustainability plans do not determine water rights to a basin, development of a plan necessarily requires knowing who is pumping how much and reductions in pumping to reach sustainability- although not adjudications of water rights- will have the same practical effect.
III: Future Steps
At this point in time, after watching the water rights scene pretty closely for nearly a half century, I think it is reasonable to assume that fundamental reform of the crazy-quilt water rights system is not realistic. However, I think there are realistic changes that can be made to improve the system and create a new normal.
For example, the Public Policy Institute of California (PPIC) which has been doing an excellent job of serious studies of California water law and policy, recently recommended:
1. “Bring all surface users under the water board’s permitting system.” This would not change the character of these rights, riparian, for example, but would give the board a better handle on the system. In the words of PPIC, this would “add certainty and efficiency by bringing all rights under the umbrella of a common, coherent administrative system.” PPIC suggests that riparians, while still having the highest priority, would have to demonstrate their land is eligible for riparian status.
2. “Require surface right-holders to choose between riparian and appropriative rights.” PPIC comments “This would not change the amount of water these landowners could use — it would simply prevent them from frustrating the administrative system by toggling between rights. (emphasis added)” Interestingly, I suggested this be done when I was on the water board in the early 1970’s but my suggestion did not get anywhere. Why should the same water be subject to two different rights? Fortunately, the Millview case I previously mentioned confirmed that one can’t perfect or maintain an appropriative right with diversions that are authorized under a riparian right. Nevertheless the statutory change would be useful.
3.” Quantify groundwater rights in priority basins.” PPIC suggests the new statutory adjudication system as the vehicle for this.
4. “Develop an authoritative water accounting system.” PPIC recognizes the 2015 changes in the law but suggests others such as having key state agencies develop a common water accounting framework. This makes great sense.
PPIC makes other recommendations regarding environmental needs of river systems, and removing barriers to water trading, among others. But I have chosen to focus on the suggestions relating to the water rights system.
I hope that the current drought (which is not yet over) is the wake-up call that the 1977 drought was not. Some Congressmen from the San Joaquin Valley apparently believe that just reducing environmental protections in the Delta will get people all the water they need without tinkering with our flawed water rights system. I disagree with this approach. And Governor Brown in his State of the State address commented “Pitting fish against farmer misses the point and grossly distorts reality.”
Before the endangered species act was enacted by Congress, the water board had already set Delta water quality standards for the state and federal water projects. (Decision 1379, 1971). State law protections are still there.
I was an optimist when I joined the water board in 1969 and thought the water rights world could be reformed and made more coherent. Over the years, I have been frustrated by the fact change has come so slowly, but there are far more individuals and organizations dedicated today to making the system work better. This Symposium is a good example. The bright water and environmental lawyers of the future in this room give me great reason to believe things will indeed be better.
1 “Even in drought, CA water rights politically toxic,” The Desert Sun, September 30, 2015
2 University of California Press, 1999, p. 271-274
3 San Francisco Chronicle, January 20, 2016, p. A11
4 Public Policy Institute of California, Allocating California’s Water — Directions for Reform, November 2015.
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