Are California Water Laws Prepared to Deal With Climate Change?

What is California doing to slow the damage that climate change is wreaking on the state’s water supply? Not nearly enough. That, anyway, is the conclusion reached in a sweeping new report by a panel of experts assembled by the Planning and Conservation League. 

The independent, nonprofit environmental advocacy group, which was founded in 1965, put together the group of environmental law experts in mid-2020 and asked them to come up with strategies the state could employ to update the ways it regulates water rights. The last time the state had taken a serious look at the issue was in 1977 when Gov. Jerry Brown—during his first two-term stint as governor—signed an executive order creating the Governor’s Commission to Review Water Rights Law. The commission issued a final report in 1978. 

The 2022 expert report,  straightforwardly titled “Updating California Water Laws to Address Drought and Climate Change,” consists of “a set of recommendations on how our water laws can be updated.” The authors are careful to note that they are not trying to “blow up” existing water rights laws, but instead to take “a focused approach to updating existing laws, regulations, and funding.”

Water Policy Must Confront Climate Change

Nonetheless, the new report’s authors recommend a series of aggressive actions, because California is drying up. The changing climate continues to make the state’s ongoing drought worse. As of February 2022, 99.57 percent of California was experiencing at least “moderate” drought conditions, according to the U.S. Drought Monitor, and approximately two-thirds—66.39 percent—was under a “severe” drought.

Thanks to the warming climate, the Sierra Nevada snowpack, which provides an average of 30 percent of the state’s water supply, is vanishing. According to a 2021 study published by the scientific journal Nature Reviews Earth & Environment, the Sierra snowpack could be gone completely within just 25 years.

Climate change heightens the need for water while reducing the amount of water available, according to the federal Environmental Protection Agency. As temperatures go up, water evaporates faster and plants use more water to keep cool, meaning farmland needs more water for irrigation.

Like the snowpack, groundwater basins—underground pools of water that can be drawn to the surface using wells—are also drying up. About 85 percent of Californians get at least a portion of their water supply from groundwater basins, according to a report by the Public Policy Institute of California, and 40 percent of water used by farms and cities is drawn from underground. During the drought period from 2012 to 2016, 3,500 wells relied upon by farmers and communities simply went dry.

Under California law, access to safe water for drinking and other household needs is a human right. But as of 2020, according to a PPIC report, that human right was being violated for nearly one million people in California. In that 2012-2016 drought, 2,600 households were short of drinking water due to dry wells. Most of the failing water systems served people of color in rural, low-income communities.

How to Make a Water a Real Human Right

Several of the report’s most important recommendations are designed to give teeth to the state’s 2012 law that declares access to safe water for drinking and other household needs a human right.

Panelist Jennifer Harder, a law professor at Pacific McGeorge School of Law in Sacramento, during a Feb. 3 public panel discussion of the report, said that the state’s landmark, 2014 Sustainable Groundwater Management Act (SGMA) needs to be adjusted to specifically address depleted domestic wells.

The SGMA required local governments and water districts in areas where groundwater basins have been significantly depleted to create Groundwater Sustainability Agencies (GSAs). The new agencies would be tasked with creating 20-year plans to get groundwater basins back to levels where more water was going in (from rainfall and other sources) than was being pumped out.

That requirement doesn’t do enough for the communities hit hardest by groundwater depletion, known as “overdraft,” Harder said.

“Our group believed very firmly that California water law should include standards that expressly and unambiguously protect disadvantaged and historically underserved communities, correcting the systemic inequities in those communities,” Harder said at the public discussion.

‘Sustainability’ Must Include Domestic Wells

To hit this goal, the GSAs must not only determine how to make groundwater basins sustainable, but also directly address how overdrafting affects domestic wells. Next, the state should require that dried wells be deepened, repaired or connected to other, more reliable sources of water.

Finally,  the costs of achieving groundwater sustainability cannot be passed on to people served by domestic wells.

“Achieving groundwater sustainability is a necessary and commendable goal,” Harder said. “But we also believed that the state must not place the burden of achieving that goal on its most vulnerable individuals and communities.”

Bringing Water Rights Into the Future

Clifford Lee, a former California deputy attorney general, said the state’s process for assigning water rights has failed to take climate change into account—and that has to change.

Under current law, which was first set in 1913, the State Water Board must determine how much water in a given system is actually available for use, before granting new water permits. How does it make that calculation? According to Lee, by using historical data, usually 43 years worth of it, to figure out an average amount of available water flowing through a specific stream.

But due to the effects of climate change, the use of historical data to estimate future water flow is no longer “defensible,” Lee said, because there will be less water in the future than there was in past years. Lee called the reliance on past data the “Waiting for Godot fallacy.”

(Samuel Beckett’s classic 1952 play Waiting for Godot centers around two men who spend the entire two acts anticipating the arrival of a mysterious character known only as “Godot” who never shows up.)

“That is the problem with using historical data to determine future flow,” Lee said, explaining the report’s recommendations. “The flow is not going to arrive.”

The state must develop better ways to collect water data, Lee said. Currently, he said, the state requires only that water-users self-report how much they diverted out of a stream in the previous year—which leaves the state “flying blind” when it comes to figuring out how climate change will affect future water supplies.

The report recommends initiating a program to gather real-time water data, starting in two watersheds then expanding throughout the state.

An Emphasis on Tribal Water Rights

Though the report’s authors noted that “as non-tribal people” they could not speak for experts on tribal issues, they state that “both federally recognized and non-recognized tribes have had cultural, social, and nutritional relationships with rivers from time immemorial. Yet, their rights have rarely been recognized.”

The expert panel’s report recommended that new funding sources should be identified for promoting tribal participation in State Water Board proceedings, as well as those of regional boards. The panel recommended that at least one member of the state board and each regional board should be a qualified expert in the field of environmental justice as it related to water issues.

“Tribal Justice is fundamental to water justice,” the report's authors wrote. “They also frequently have been excluded from decisions that drastically affect the very waterways they successfully stewarded for thousands of years.”