Developing the Next Framework to Manage the Colorado River: Flexible Tools to Benefit Tribes and the Basin

Water and Tribes Initiative | August 2nd, 2022

Dispute Resolution Processes - Thinking Through SGMA Implementation: A Water in the West Series

Stanford University | October 9th, 2019

Groundwater serves as the primary water supply for more than two billion people worldwide (Famiglietti 2014) and supplies approximately 40% of irrigation water supply gl

Groundwater serves as the primary water supply for more than two billion people worldwide (Famiglietti 2014) and supplies approximately 40% of irrigation water supply globally (Siebert et al. 2010). This heavy reliance on groundwater aquifers has led to the unsustainable depletion of groundwater resources at the regional and global scale resulting in an increasing number of conflicts over groundwater resources (Jarvis 2014). Similar to global trends, a long-term overreliance on groundwater in California has resulted in historically low groundwater levels in basins throughout the state. Groundwater level declines have had widespread impacts, including drying of domestic wells, land subsidence and the loss of supply wells. In 2014, California passed the Sustainable Groundwater Management Act (SGMA) to address the impacts resulting from chronic groundwater overdraft in the state. SGMA requires formation of local Groundwater Sustainability Agencies (GSAs). GSAs must develop and implement Groundwater Sustainability Plans (GSPs, Plan) to achieve sustainability within 20 years of Plan implementation. Achieving sustainability requires local agencies, stakeholders and water users to make many difficult and potentially contentious decisions such as regulating pumping, levying pumping fees and finding and purchasing alternative water supplies to meet legislated sustainability goals. These decisions are prone to conflict, particularly when pumping restrictions are viewed as infringing on property rights, or when fees are charged to support local management. Traditionally, many of these decisions have been resolved through court adjudications, many of which have been long and expensive processes in California (Szeptycki et al. 2018) and elsewhere (USDA 2018). In recent decades, the Alternative Dispute Resolution (ADR) movement has fostered use of alternative processes, including direct negotiation among the parties, facilitation, mediation and arbitration in lieu of, or supplemental to, adjudication to resolve environmental conflicts. The U.S. Department of Agriculture (USDA) mediation program has the explicit goal of helping “avoid expensive and time-consuming administrative appeals and/ or litigation” (USDA 2018). Other government departments like the Department of Energy and the U.S. Environmental Protection Agency also have mediation programs with similar goals. Many of the local GSAs established under SGMA are multi-entity GSAs formed through Joint Powers Authorities Agreements (JPAA) or through Memorandums of Understanding Agreements (MOUA) – we refer to these agreements collectively as “Agreements.” Additionally, the jurisdictional area of many GSAs does not span the entire groundwater basin. SGMA requires sustainability at the basin-scale, so many GSAs will need to collaborate internally (among member agencies within a GSA) and externally (with other GSAs in their basin) to develop and implement GSPs which are “together likely to achieve the groundwater sustainability goal for the basin,” (California Water Code (CWC) § 10733(b)). Newly formed GSAs have additional layers of potential conflict that may not be present in interpersonal or even other inter-organizational contexts with well-established processes and precedents, including questions of who has the authority, what process(es) should be followed when exercising that authority and what the constraints on the exercise of that authority are. These questions are particularly pertinent when agencies with similar or overlapping authorities are working together – as is common practice under SGMA. Questions regarding authority, tight legal and regulatory timelines, a lack of existing precedents and the need to represent agency and constituent interests have the potential to exacerbate conflicts under SGMA. In some cases, where authoritative interpretations of legal authority and limits have not been established yet, litigation may be necessary and warranted. When institutions have to coordinate and cooperate, as JPAs do, identifying processes and forums for resolving conflicts is crucial (Marta et al. 2014). However, developing effective mechanisms for resolving conflicts and using them can be challenging. Learning from the experiences of past water management agencies in California, as well as the natural resource conflict resolution literature more broadly, may help GSAs develop robust dispute resolution plans with processes to incentivize and streamline their resolution.

Drought water right curtailment analysis for California’s Eel river

American Society of Civil Engineers (ASCE) | February 1st, 2018

Water users in California’s hybrid water rights system have different legal priorities to available surface water in times of water scarcity. A set of two linear progra

Water users in California’s hybrid water rights system have different legal priorities to available surface water in times of water scarcity. A set of two linear programming models was developed to determine curtailments of water use under drought conditions according to riparian and appropriative water right doctrines with spatially varying water availability and water rights within a basin. The models were implemented in spreadsheets and extended to estimate water right reliability and factors of safety in water rights administration. Alternate methods for calculating water use curtailments are discussed. Curtailments from the models are compared with actual water shortage notices issued by the state for the Eel River, California for June 30, 2014. Analyzing water use curtailments with an algorithm in spreadsheet software offers a mechanistic, transparent, accessible, and precise approach derived from legal doctrines to support water rights administration during drought.

Drought, Water Law, and the Origins of California's Central Valley Project

University of Nevada Press | October 27th, 2016

This book is an account of how water rights were designed as a key part of the state’s largest public water system, the Central Valley Project. Along sixty miles of the

This book is an account of how water rights were designed as a key part of the state’s largest public water system, the Central Valley Project. Along sixty miles of the San Joaquin River, from Gustine to Mendota, four corporate entities called “exchange contractors” retain paramount water rights to the river. Their rights descend from the days of the Miller & Lux Cattle Company, which amassed an empire of land and water from the 1850s through the 1920s and protected these assets through business deals and prolific litigation. Miller & Lux’s dominance of the river relied on what many in the San Joaquin Valley regarded as wasteful irrigation practices and unreasonable water usage. Economic and political power in California’s present water system was born of this monopoly on water control. Stroshane tells how drought and legal conflict shaped statewide economic development and how the grand bargain of a San Joaquin River water exchange was struck from this monopoly legacy, setting the stage for future water wars. His analysis will appeal to readers interested in environmental studies and public policy.

Early California Laws and Policies Relating to California Indians

California Research Bureau (CRB) | September 1st, 2002

Did the State of California enact laws that prohibited California Indians from practicing their religion, speaking their languages or practicing traditional ceremonies an

Did the State of California enact laws that prohibited California Indians from practicing their religion, speaking their languages or practicing traditional ceremonies and customs?  Senator John L. Burton requested that the California Research Bureau research this question. The initial investigation and research contained in this report led to a focus on four examples of early State of California laws and policies that significantly impacted the California Indians’ way of life: ·  The 1850 Act for the Government and Protection of Indians and related amendments; ·  California militia policies and “Expeditions against the Indians” during 1851 to 1859; ·  The State of California’s official response to federal treaties negotiated with California Indians during 1851 to 1852; and ·  Early and current state fish protection laws that exempt California Indians from related prohibitions. The 1850 Act for the Government and Protection of Indians facilitated removing California Indians from their traditional lands, separating at least a generation of children and adults from their families, languages, and cultures (1850 to 1865). This California law provided for “apprenticing” or indenturing Indian children and adults to Whites, and also punished “vagrant” Indians by “hiring” them out to the highest bidder at a public auction if the Indian could not provide sufficient bond or bail. The California Legislature created the laws that controlled California Indians’ land, lives and livelihoods, while enforcement and implementation occurred at the county and local township levels. Some examples include: ·  County-level Courts of Sessions and local township Justices of the Peace determined which Indians and Indian children were “apprenticed” or  indentured pursuant to the 1850 Act for the Government and Protection of Indians. ·  Under the same act, Justices of the Peace, mayors or recorders of incorporated towns or cities, decided the status and punishment of “vagrant” Indians. ·  Under the California Constitution and state militia laws, California governors ordered local sheriffs to organize the men to conduct the “Expeditions against the Indians.” From 1851 to 1859, the California Legislature passed twenty-seven laws that the State Comptroller relied upon in determining the total expenditures related to the Expeditions against the Indians. The total amount of claims submitted to the State of California Comptroller for these Expeditions against the Indians was $1,293,179.20. The California Legislature was involved in influencing the U.S. Senate’s ratification process of the 18 treaties negotiated with California Indians during 1851 to 1852. These treaties were never ratified, and kept secret from 1852 until 1905. Prior to the President submitting the treaties to the Senate, the California Legislature conducted considerable debate, made reports, drafted and passed resolutions that mostly opposed ratification of the treaties. The California Legislature also enacted laws during the first fifteen years of statehood that accommodated Indian tribes’ traditional fishing practices. California laws exist today that continue to protect fish and exempt California Indians from related prohibitions.

Effective Implementation of the Public Trust Doctrine in California Water Resources Decision-Making: A View From the Bench

University of California, Berkeley (UC Berkeley) | April 12th, 2012

Forty years ago, in his seminal law review article on the public trust doctrine, Professor Joseph L. Sax suggested that “citizens seeking to develop a comprehen

Forty years ago, in his seminal law review article on the public trust doctrine, Professor Joseph L. Sax suggested that “citizens seeking to develop a comprehensive legal approach to resource management problems” could use the public trust doctrine to obtain “effective judicial intervention” where “legislative response and administrative action” had been inconsistent. Of course, water is one of the natural resources to which the public trust doctrine is, and always has been, particularly applicable. And yet, it was not until ten years after Professor Sax published his article that Professor Ralph W. Johnson first predicted an impending “collision” between “[t]he public trust doctrine and the appropriative water rights system . . . in the West.” The imminence of that collision — in California at least — was due in no small part to the National Audubon Society’s then-pending suit against the Department of Water and Power of the City of Los Angeles (“L.A. Water and Power”) to limit diversions from the streams feeding Mono Lake.  That suit, which was a prime example of the sort of public interest litigation Professor Sax had advocated in his article, led to the California Supreme Court’s seminal decision in National Audubon, in which the court announced that “[t]he state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect the public trust uses whenever feasible.” Today, twenty-eight years after the decision in National Audubon and more than forty years after Professor Sax’s article, what have we learned about the use of the public trust doctrine in water resources decision-making in California? Has it been an effective tool for obtaining judicial intervention in the decision-making process, as Professor Sax suggested it could be? And, more importantly, is judicial intervention the best way to effectuate and protect public trust values in the state’s water resources? Those are some of the questions I seek to answer in this Article.

Efficient Water Use in California: Water Rights, Water Districts, and Water Transfers

Rand Corporation (Rand) | November 13th, 1978

Ensuring the Public Trust

University of California, Davis (UC Davis) | July 1st, 2012

The California Supreme Court's recognition of the public trust doctrine as an integral part of California's water rights system was one of the momentous events in the h

The California Supreme Court's recognition of the public trust doctrine as an integral part of California's water rights system was one of the momentous events in the history of California (if not United States) environmental policy.' The court looked back to the foundational purposes of the public trust to hold that there are limits to the sovereign power to privatize the rights to use the waters of the state, and it looked forward to conclude that prudent development and sustainable use of California's water resources require the state to retain authority to protect the public trust for the benefit of all Californians. The court also defined the public trust as an environmental baseline that both protects the traditional interests of navigation, commerce, and fisheries and embodies the contemporary scientific and popular understanding that there are ecological limits to the diversion and use of water for consumptive purposes. The lessons of National Audubon Society v. Superior Court2 are now a commonplace of water rights law, appearing not just in administrative orders and judicial opinions, but also in standard water rights terms, policy studies, and legislation.

Estuary News, February 1998

San Francisco Estuary Partnership (SFEP) | February 15th, 1998

Estuary News, June 2001

San Francisco Estuary Partnership (SFEP) | June 15th, 2001