Addressing Institutional Vulnerabilities in California’s Drought Water Allocation, Part 2: Improving Water Rights Administration and Oversight for Future Droughts

California Natural Resources Agency (CNRA) | August 30th, 2018

 In California, droughts are likely to become more frequent, longer, and more intense in the future, posing increasing challenges for water management, and raising the s

 In California, droughts are likely to become more frequent, longer, and more intense in the future, posing increasing challenges for water management, and raising the stakes for effective drought response. This project aims to help state water governance and decision-making structures adapt to the changing climatic reality. In a companion report in this volume, we analyzed the strategies the State Water Resources Control Board (Board) used for water rights administration and oversight during the last four major statewide droughts. Our findings suggest that more proactive planning and preparation, enabling reduced reliance on in-drought improvisation, would improve the Board’s future drought responses. This report builds on that retrospective analysis with specific recommendations.  Click here for Part 1.

Allocating California’s Water: Directions for Reform

Public Policy Institute of California (PPIC) | November 11th, 2015

California’s water allocation system hampers its ability to meet the state’s needs, especially in times of drought. At its heart is an unusually complex array of wate

California’s water allocation system hampers its ability to meet the state’s needs, especially in times of drought. At its heart is an unusually complex array of water rights. This report summarizes challenges and suggests reforms to strengthen the state’s ability to weather droughts and shifting economic demands for water, while maintaining the existing seniority of water rights. Read a summary of the report’s policy recommendations.

Alternative management paradigms for the future of the Colorado and Green Rivers

U.S. Department of Agriculture (USDA) | January 28th, 2021

The Colorado River is among the most extensively managed river systems in the world. The river’s headwaters are within the Rocky Mountains in the United States. From t

The Colorado River is among the most extensively managed river systems in the world. The river’s headwaters are within the Rocky Mountains in the United States. From there, it flows through the arid lands of the Colorado Plateau and the Basin-and-Range to its delta in northwestern Mexico. Here, the river is the only significant water supply in an otherwise starkly arid landscape and has long been called “America’s Nile.” It provides a critical water supply for nearly four million acres of irrigated land, municipal supplies for 30 million people located within and outside the basin, and more than 4,200 MW of hydropower generation capacity. The Colorado River and some of its tributaries also provide an existing or potential water supply for at least 15 Native American tribes. The river flows through seven National Wildlife Refuges, four National Recreation Areas, and five National Parks. Today, the annual consumptive uses and losses of streamflow in the basin typically exceed the amount of water available, and the river rarely flows into the Gulf of California. The impacts of climate change are likely to decrease future runoff and intensify droughts, thereby threatening current and future uses in the basin. Clearly, new ways of thinking about and managing the river need to be sought and implemented.

Amoral Water Markets?

Georgetown University | June 15th, 2023

Severe water scarcity in the western United States is prompting legitimate questions about the best way to decide which places, people, industries, and species need it mo

Severe water scarcity in the western United States is prompting legitimate questions about the best way to decide which places, people, industries, and species need it most. Water markets, which allow for trading water like a commodity, are perennial proposals during times of scarcity. Water markets have an innate allure: promising to efficiently reallocate water to the highest value uses, minimize risk, and preserve the environment, while relying on the invisible hand to brush aside politically painful values-based questions. This view portrays markets as an amoral arbiter of the best use of water. But water markets are not amoral; they express the historic value judgments baked into the existing western water law system, and layering market approaches over the existing system will both exacerbate the negative impacts of those values and further entrench existing law. In this Article, we show that the West is not ready for water markets.

An Evaluation of California’s Adjudicated Groundwater Basins

University of California, Santa Cruz (UC Santa Cruz) | October 1st, 2016

Groundwater is a critical resource in California, providing on average 30 percent of the state’s total water supply and significantly more during dry years. Many commu

Groundwater is a critical resource in California, providing on average 30 percent of the state’s total water supply and significantly more during dry years. Many communities rely exclusively on groundwater, and it is an essential back-up source of water during droughts when pumping increases significantly to compensate for reduced surface supplies. Local groundwater management agencies, special act districts, and court adjudications are the primary institutional arrangements to manage groundwater in California. Increasing groundwater declines in many areas of the state and concomitant negative impacts prompted the passage of the 2014 Sustainable Groundwater Management Act (SGMA). The SGMA established new requirements for 127 high- and medium-priority groundwater basins that are either in overdraft or vulnerable to overdraft to develop sustainable management programs with increased state oversight. The SGMA defines sustainable groundwater management as: “The management and use of groundwater in a manner that can be maintained during the planning and implementation horizon without causing undesirable results.” Undesirable results include: chronic lowering of groundwater levels; significant and unreasonable reduction of groundwater storage; significant and unreasonable seawater intrusion, degraded water quality, and land subsidence; depletions of interconnected surface water that have significant and unreasonable adverse impacts on beneficial uses of the surface water. The SGMA exempts 388 basins categorized as low- and very-low priority, as well as all the adjudicated groundwater basins and 3 basins with pending groundwater adjudications. The SGMA was followed by the passage of Assembly Bill 1390 (AB 1390) and Senate Bill 226 (SB 226) in 2015 that provide some procedures for groundwater adjudications. In the adjudication of a groundwater basin, the court generally defines and determines water rights for all users and provides court-supervised basin management by a Watermaster, who is usually appointed by the court to ensure that the basin is managed in accordance with the court’s decree. Prior to adjudication, key stakeholders and users of the groundwater in a basin often negotiate a stipulation and physical solution to manage the basin, and the court can then accept it in whole or in part, or reject it and craft a different solution to manage the basin. There is limited analysis of the history and current condition of California’s adjudicated basins and the potential for future improvements to the adjudication process. This report for the State Water Resources Control Board (SWRCB) evaluates all of California’s adjudicated basins with respect to sustainable groundwater management as defined in SGMA including: accomplishments, challenges, how management can be improved, and whether there are common elements that result in the sustainable management of an adjudicated groundwater basin.

An Evolutionary Theory of Administrative Law

Southern Methodist University | May 25th, 2018

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a jud

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a judiciary hesitant to address policy questions, evolution of statutory law has become much more difficult. This leads to pent up demand for change in legal regimes. If the legislature and the courts cannot provide an outlet for this pressure, where does it go? How does the law continue to change? Although other scholars have looked to agencies as engines of legal change, we lack a theoretical framework to understand how that change happens. I argue that an evolutionary framework provides an informative framework for understanding administrative legal change. I provide three case studies that demonstrate the administrative evolution of the Endangered Species Act. In spite of tremendous advances in conservation, fundamental changes in scientists’ understanding of human impacts on the natural world, and increasingly strident clashes over private property rights and endangered species, the Act has remained largely unchanged for the last 35 years. In a functioning legislative system, the Act would have been amended to accommodate many of these changes. Instead, the case studies show a mechanism of legal change through agency action analogous to the mechanisms underlying biological evolution. Other commentators have argued the administrative state stymies evolution of the law, but this research contradicts that view. Applying an evolutionary framework to administrative actions creates a new theory of administrative evolution of the law, placing administrative analysis within the long tradition of evolutionary approaches to legal change used by commentators from Aristotle to Holmes. In contrast to traditional normative theories of administrative law, an evolutionary approach focuses on how change progresses over time. This theory of administrative evolution of the law also casts new light on a host of normative questions, from the role of judicial review to improvements in agency decision-making. Considering administrative actions within the broader context of the legal evolution promises a fruitful new approach to analyzing administrative law.

Applying the Public Trust Doctrine to River Protection

California Department of Water Resources (DWR) | June 9th, 2004

The public trust is an ancient doctrine, stemming from Roman law. The Institutes of Justinian state that “by natural law, these things are common property of all: air,

The public trust is an ancient doctrine, stemming from Roman law. The Institutes of Justinian state that “by natural law, these things are common property of all: air, running water, the sea, and with it the shores of the sea.” In medieval England this notion was picked up and turned into a declaration that the shores of the sea are common to all and inalienable. The concept was adopted in the United States. As early as 1821, a New Jersey court held that the state could not convey into private ownership the public lands covered by tidal waters, and that any grant purporting to do so was void. These waters are vested in the sovereign state, the court held, not for its own use, but for the use of its citizens for “passing and repassing, navigation, fishing, fowling, sustenance, and all the other uses of the water and its products...” Arnold v. Mundy, 6 N.J.L. 1 (1821). Although the legislature may build dams, locks and bridges in the general interest of improving navigation, the court stated, “they may not consistently with the principles of the law of nature and the constitution of a well-ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right.” That, said the Chief Justice, would be a grievance “which never could be long borne by a free people.” Id at 78. The public trust, like the ten commandments, has traditionally been phrased in terms of prohibition: “Thou shalt not abdicate the State’s control over its navigable waters.” More recently, however, this hoary common law creature, with roots in the civil laws of the Roman emperors, the English monarchs and the Spanish kings, has emerged from its long submerged home to impose new protections for the environment and new duties on governmental agencies.

Appropriative Water Rights in California: Background and Issues

California State Water Resources Control Board (SWRCB) | May 1st, 1977

This paper is part of a series of background and issue papers prepared by the staff of the Governor's Commission to Review California Water Rights Law. TABLE OF CONTEN

This paper is part of a series of background and issue papers prepared by the staff of the Governor's Commission to Review California Water Rights Law. TABLE OF CONTENTS I. Introduction II. Historical Background of Appropriative Rights III.  The Mechanics of Prior Appropriation IV.  Statements of Water Diversion and Use V.  Disputes Over Rights to Water VI.  Enforcement VII.  Loss of Appropriative Rights VIII.  Criticisms of Prior Appropriation Doctrine IX.  Water Use Planning and Allocation Issues  

Arizona v. California

United States Supreme Court | March 9th, 1964

Assembly Bill 1337

State of California Office of Legislative Counsel | February 16th, 2023