French Creek Flow Accounting Study

Scott River Water Trust | May 15th, 2020

The Scott River Water Trust (SRWT) has been working with adjudicated water-users in Scott Valley since 2007 to develop opportunities for stream flow enhancement through t

The Scott River Water Trust (SRWT) has been working with adjudicated water-users in Scott Valley since 2007 to develop opportunities for stream flow enhancement through temporary leases or long-term/permanent dedications of surface water rights. Under the seasonal Water Leasing Program, the SRWT contracts with voluntary agricultural producers to temporarily forbear all or part of their decreed water right(s) during the irrigation season in exchange for fair financial compensation. The purpose of the seasonal Water Leasing Program is to improve conditions for anadromous fish in priority stream reaches during critical life stages and time periods. The Siskiyou Resource Conservation District (SRCD) has been integrally involved with implementation of the seasonal Water Leasing Program since its inception and particularly with the monitoring component. Monitoring of seasonal transactions is generally limited to ensuring compliance with the lease terms and confirming stream response. However, in 2016 the SRWT proposed expanding the scope of effectiveness monitoring associated with the Water Leasing Program based on suggestions from Andrew Purkey and Rankin Holmes of the National Fish and Wildlife Foundation and their experience monitoring transactions in the Columbia River Basin (Holmes, et al., 2013). Under funding from the California Flow Restoration Accounting Fund managed by the National Fish and Wildlife Foundation, the SRWT contracted with the SRCD to explore several additional effectiveness monitoring techniques on French Creek including instream water level/discharge monitoring, wetted- perimeter analysis and alluvial connectivity surveillance. The purpose of this additional monitoring was to evaluate the applicability and effectiveness of these techniques to stream flow enhancement in Scott Valley and determine whether it would make sense for the SRWT adopt these practices into its programs. The specific components and objectives of the work completed on French Creek included: • Evaluate the instream effect of forbearance agreements performed by SRWT • Establish and maintain monitoring stations throughout French Creek to determine the downstream extent that returned water from various leases had on stream flow and temperature • Perform wetted perimeter analysis on French Creek to develop a relationship between instream flows and aquatic habitat conditions • Conduct periodic fisheries surveys through French Creek to evaluate the relative abundance of salmonids influenced by the transactions • Conduct periodic foot surveys through lower French Creek to establish the temporal and spatial connectivity to the Scott River This report summarizes the monitoring and analysis conducted by the SRCD during the 2018 and 2019 water leasing seasons under the French Creek Flow Accounting Study and provides conclusions related to the applicability of these methods to the SRWT.

Governing Nature: Bambi Law in a Wall-E World

Social Science Research Network (SSRN) | January 28th, 2021

Humanity has disrupted many of the fundamental processes that shape nature worldwide. Virtually no places remain unchanged. Many ecosystems have moved far from their hist

Humanity has disrupted many of the fundamental processes that shape nature worldwide. Virtually no places remain unchanged. Many ecosystems have moved far from their historic conditions and no longer support native species or traditional human uses. In the Anthropocene, a new geologic era dominated by the human impact on Earth, these problems will continue to get worse. In response, humans are intervening in ecosystems at a massive scale. This Article argues that, even as humanity engages in an unprecedented level of ecosystem management, existing environmental governance structures are ill suited to manage this new nature. Ecologists who focus on restoring ecosystems have begun to abandon efforts to recreate idealized historical ecosystems, recognizing that such efforts will fail. Instead, they embrace new approaches that acknowledge continuing human impacts and seek to shape impacted habitats in a way that benefits both human and other life. This Article examines the new ecological approaches, using their migration of purpose and approach to illuminate ecosystem management in the Anthropocene and the new obligations it places on environmental law. To sharpen this focus, the Article considers three case studies of managed ecosystems, detailing the extent to which humans are controlling nature. The case studies suggest that the existing literature seriously underestimates the magnitude of the questions society will soon face. The Article concludes that although we face the daunting prospect of reshaping the very fabric of nature, we lack the governance structures to decide what shape it should take. Society will need environmental law governance that can answer fundamental questions about humanity’s role in managing nature at all scales. This Article proposes several starting principles to encourage legal scholars to address this need.

Governor's Commission to Review California Water Rights Law Summary Final Report

State of California | December 1st, 1978

Governor's Commission to Review California Water Rights Law: Final Report

California State Water Resources Control Board (SWRCB) | December 22nd, 1978

The Final Report of the Governor's Commission to Review Water Rights Law, dated 12/22/1978.  The report contains the Commission's analysis of existing California water r

The Final Report of the Governor's Commission to Review Water Rights Law, dated 12/22/1978.  The report contains the Commission's analysis of existing California water rights law and recommendations for modifications. The Commission recommended 'modernization' in four areas:  water rights, efficiency in water use, instream uses of water, and groundwater.

Grand theft water and the calculus of compliance

Nature Portfolio (Springer Nature) | August 24th, 2020

Water crises constitute a challenge for humanity. Uncertain supply and growing demand are driving higher water theft, particularly by agricultural users who account for a

Water crises constitute a challenge for humanity. Uncertain supply and growing demand are driving higher water theft, particularly by agricultural users who account for approximately 70% of global use. However, research into water theft is underexplored in all disciplines. This paper provides a conceptual framework and modelling approach designed to improve understanding of both individual and institutional barriers to water theft. The framework and model explore how effective detection, prosecution, conviction and penalties can be assessed. Three case studies test the validity of our framework. Our findings suggest that while individuals and companies may be responsible for the act of theft, the phenomenon reflects a systematic failure of arrangements (political, legal, institutional, and so on). In addition, when regulators fail to understand the value of water, inadequate prescribed penalties increase the risk of theft. We invite others to test our framework, apply our model and engage in a wider conversation about water theft.

Groundwater Pumping Allocations under California’s Sustainable Groundwater Management Act: Considerations for Groundwater Sustainability Agencies

Environmental Defense Fund (EDF) | July 1st, 2018

The Sustainable Groundwater Management Act (SGMA) became law on January 1, 2015, forever changing the manner in which groundwater will be managed in California. It requir

The Sustainable Groundwater Management Act (SGMA) became law on January 1, 2015, forever changing the manner in which groundwater will be managed in California. It requires local Groundwater Sustainability Agencies (GSAs) to be formed and Groundwater Sustainability Plans (GSPs) to be prepared in order to achieve sustainable groundwater management within 20 years of adopting a GSP. SGMA applies to 127 medium and high priority groundwater subbasins around the state. Over 100 of the medium and high priority groundwater subbasins are in conditions of chronic overdraft (DWR, 2018), meaning average annual groundwater extractions exceed average annual water replenishment to many of the subbasins. These conditions have resulted in a variety of undesirable impacts to the subbasin, including, but not limited to, increasing depth to groundwater, reductions of groundwater storage, seawater intrusion, degraded water quality, and land subsidence. In many subbasins, groundwater overdraft conditions will require GSAs to impose reductions in pumping in order to achieve sustainable conditions in the subbasin. To do this, GSAs will need set a limit or “cap” on the overall amount of groundwater that is removed from the subbasin, assigning portions of this capped amount to groundwater pumpers in the form of a pumping allocation. Making pumping allocation decisions will be a difficult task for GSAs, as it will require restricting access to groundwater resources upon which the agricultural community, cities and towns, and others depend. SGMA expressly does not create or adjust groundwater rights and the basic law of groundwater rights remains largely unchanged. Simply put, this means that while GSAs are tasked with managing groundwater with the goal of bringing groundwater conditions into balance and stopping further depletions and other undesirable impacts, they do not have the authority to change or modify groundwater rights. Thus, GSAs should be mindful of the basic law of groundwater as articulated by the common law and a series of adjudicatory court decisions over the last 100 plus years. The subject of this paper is how to address this dilemma, with the reasoning that if GSAs devise groundwater allocation schemes in a manner consistent with the fundamental principles of groundwater law, the schemes are likely to be more durable, and GSAs are more likely to achieve sustainable groundwater management in a legally defensible manner. To do this, we first provide background on the nature of groundwater rights and how the hierarchy of groundwater rights may affect the legal defensibility of pumping allocations imposed by GSAs upon pumpers. We then discuss the role of groundwater allocations and methods for allocating groundwater pumping rights, and then offer a suggested allocation approach with criteria for consideration when using this approach. To help readers work through the allocation process, the paper includes a hypothetical decision tree graphic. We also discuss the importance of measurement, tracking, and enforcement, as well as additional considerations under SGMA before offering some concluding remarks.

Hemet San Jacinto Stipulated Judgment

Superior Court of California, County of Riverside | April 18th, 2013

Background from "An Evaluation of California’s Adjudicated Groundwater Basins," Langridge et al, 2016 (UC Davis) Groundwater problems in the San Jacinto Basin were f

Background from "An Evaluation of California’s Adjudicated Groundwater Basins," Langridge et al, 2016 (UC Davis) Groundwater problems in the San Jacinto Basin were first addressed by the court in a 1954 judgment that allocated pumping rights for the Fruitvale Mutual Water Company in the upper San Jacinto Basin. Declining groundwater levels persisted into the 1970s, and local water purveyors attempted to develop a groundwater management plan to address the declines. Eastern Municipal Water District (EMWD), which had acquired the Fruitvale Company in 1972, worked with the water purveyors in the 1990s to implement an AB 3030 groundwater management plan for the West San Jacinto Groundwater Management Area. In 2001, a Memorandum of Understanding between the Department of Water Resources (DWR) and local agencies required a water management plan for the Hemet/San Jacinto Groundwater Management Area, the eastern portion of the San Jacinto Basin, and a plan was released in 2007. At the same time, the Soboba Band of Luiseño Indians, negotiating with the local agencies to specify their groundwater rights from the Hemet/San Jacinto Groundwater Management Area, also pushed for a management plan. These negotiations culminated in the 2008 Soboba Settlement Agreement Act that established their water rights. A 2013 stipulated judgment allocated pumping rights for public water agencies, provided for water rights outlined in the Soboba Settlement Agreement, incorporated the Water Management Plan, and mandated a Watermaster."

How are Western water districts managing groundwater basins?

California Agriculture (UCANR) | March 13th, 2018

Making the transition from open-access groundwater rights to sustainable groundwater management is a formidable task for newly formed groundwater sustainability agencies

Making the transition from open-access groundwater rights to sustainable groundwater management is a formidable task for newly formed groundwater sustainability agencies in California. As agencies begin to decide how to make equitable water allocations, how to monitor groundwater use and what mix of supply- and demand-side mechanisms to adopt to satisfy sustainability criteria, the groundwater management strategies in place across other basins in the western United States are worth studying. We surveyed 18 groundwater districts in California and other Western states to identify the management approaches and practices they have instituted. The conclusions we draw suggest a correlative rights framework of water allocation with phase-ins for heavy users; metered pumping; flexible arrangements for trading and carrying over allocations for multiple years; and incentivizing groundwater recharge, including recharge from deep percolation from crops. Rigid formulas for significantly reducing groundwater use in medium- and high-priority basins are likely to have significant negative effects on the regional economy.

Hudson v. Dailey

Supreme Court of California | December 1st, 1909

Implementing Ecosystem Based Management

Duke Environmental Law & Policy Forum | June 7th, 2021