Environmental Law

Envt'l Law News Summer 2015, Vol. 24, No. 1

California’s Efforts to Solve Its Water Shortage: Can They Succeed?

by Edgar B. Washburn*

It is no longer news that California is experiencing one of the most severe droughts in its history. The current drought is now more than three years old and there is no certainty as to when it will end. Indeed, with climate change expected to significantly reduce the amount of snowfall in the future – consequently limiting storage and reducing groundwater reserves – a drier future is more likely than not.

Water shortages in Southern California and the Central Valley are nothing new. The underlying problem is not just the drought, but geography. The surface water supply and the areas in need of water are in different parts of the state. Seventy-five percent of the snow and rain occurs in the north and 75% of the usage occurs in the Central Valley and Southern California. The drought has already resulted in substantial reductions of water deliveries from the Central Valley Project ("CVP") and State Water Project ("SWP"), which are the principle sources of water diversions to the Central Valley and Southern California. That, in turn, has resulted in excessive reliance on groundwater pumping for agriculture and the fallowing of thousands of acres of productive farm land. A declaration of drought emergency by the governor, and implementation of restrictions on diversions of surface water by the State Water Resources Control Board ("Water Board"), along with mandated reductions in urban water use, have affected a large percentage of the state’s population. Although it had been perceived as being politically infeasible to adopt a statewide program for the management of groundwater and pass a substantial bond issue for the improvement of state water supply infrastructure projects in 2014, the legislature has authorized both. While neither measure will permanently reduce the impacts of the drought, they represent an acknowledgment of the need for fundamental change.

Efforts to date to deal with the drought all operate within the existing legal and administrative structure —which is itself a constraint upon the ability of the state to provide long-term relief. Serious structural impediments include (i) the State’s lack of a rational regulatory scheme for groundwater (the recent legislative action is a significant, although belated, move in that direction), (ii) water rights allocations that far exceed the state’s mean annual runoff, and (iii) water rights law that reflects late-nineteenth century visions of societal needs, rather than a regime designed to allocate a limited supply of water in an arid region experiencing rapid growth, and on which more recent judicial decisions have overlay additional requirements addressing beneficial use and environmental concerns. Water conservation, recycling, use of improved agricultural irrigation methods, further curtailment of urban use, groundwater storage and regulation, and the facilitation of water marketing are all needed responses, but they have yet to be implemented on the requisite scale. With powerful constituencies on all sides, a consensus leading to a comprehensive long-term plan and solution has proven to be an elusive goal. Achieving solutions will require stretching, revising and sometimes rejecting well-established rules for allocating water. This, in turn, may lead to uncertainty among users, and curtailment of long-standing uses thought to be secure.

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