Berkeley Law

California has increasingly emphasized efforts to develop voluntary agreements (VAs) with water users as a means of achieving regulatory goals in certain watersheds. In theory, a VA can combine the protectiveness of a regulatory backstop with the creativity and flexibility of a negotiated deal to produce outcomes as good as, or better than, those achievable through strict application of regulatory requirements alone. However, reality has not always measured up to this ideal. This policy paper uses the Bay-Delta watershed as a case study to inform five principles to guide the appropriate use and evaluation of VAs.

Droughts are becoming more frequent and intense in California. Many California watersheds experience seasonal water scarcity nearly every year. To protect water rights, human health and safety, and the environment from serious harm, California’s State Water Resources Control Board (SWRCB) needs to be able to routinely curtail unlawful water uses. But it has struggled to carry out this basic function, running into resource constraints and technical, legal, and political barriers. This report describes the legal context for and history of curtailments in California. It also recommends actions the SWRCB and State Legislature can take to build a framework for fair and effective curtailment in California.

This issue brief considers whether groundwater recharge currently qualifies, or should qualify, as a beneficial use of surface water under a California water right. Currently, the lack of an explicit policy regarding recharge for non-extractive purposes — that is, for purposes such as combatting subsidence, raising regional groundwater levels, or supporting baseflow or ground-water dependent wetlands — creates uncertainty and confusion. To bring much needed clarity, the State Water Resources Control Board (the Board) should provide guidance explaining that recharge for non-extractive purposes can be a beneficial use of water. That guidance should explain the conditions under which recharge for nonextractive purposes is beneficial and the evidence water managers should provide to support a beneficial use determination.

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.

Our vision is simple: During droughts, California’s limited water supplies should be allocated among different human and environmental water uses transparently, efficiently, and predictably, in accordance with the priorities that flow from state and federal law.

We suggest a structured means of implementing this vision that emphasizes proactive drought preparations. At the core is a contingency-based framework designed to support more timely and effective drought decision making. A suite of complementary actions aims to reduce uncertainty and lay the groundwork for improved water rights administration and oversight in future droughts. These actions include making key policy decisions that affect drought response in advance, strategically improving decision-related information, maximizing learning from droughts, prioritizing water rights enforcement between droughts, and capitalizing on the many synergies that exist between the Board’s drought and non-drought work to achieve better water management outcomes, greater clarity for water users, and more efficient use of state resources. We view these actions as crucial components of effective climate adaption for California and encourage the Board to begin implementing them now, so that it is better prepared to face the challenges the next drought brings.

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 this changing climatic reality.

The State Water Resources Control Board (Board) has significant responsibilities for California water rights administration and oversight, and the decisions it makes affect how scarce water resources are allocated among different human and environmental uses during droughts. We analyzed the strategies the Board used for water rights administration and oversight during the last four major statewide droughts, in water years 1976–1977, 1987–1992, 2007–2009, and 2012– 2016. The Board employed an array of different drought response strategies that varied in depth and breadth from drought to drought. We discuss thirteen types of strategies organized into four broad categories: (1) addressing urgent water right requests, (2) providing oversight of existing diversions, (3) providing oversight of water use by end users, and (4) cross-cutting strategies that support or complement strategies in the first three groups. The Board engaged in the greatest breadth and depth of strategies during the recent drought.

Despite some significant and creative in-drought efforts by the Board and others, which led to positive developments during and immediately following each drought, relatively little proactive preparation for drought-specific water rights administration and oversight appears to have occurred between droughts. Instead, our research suggests the Board developed its drought responses on a largely ad hoc basis in the midst of each drought emergency, with varying degrees of success. We conclude that more proactive planning and preparation would improve the Board’s future drought responses, making them more transparent, predictable, timely, and effective. A companion report in this volume builds on this analysis with specific recommendations

California recognizes a human right to safe, affordable drinking water. However, small and disadvantaged communities can find it especially challenging to fund the water systems necessary to achieve this goal. Small water systems are responsible for the bulk of the state’s drinking water quality violations, and an estimated 300 disadvantaged communities in California are served by systems that fail to meet state drinking water standards.

Water system consolidations can create economies of scale that help address persistent water system inadequacies in small and disadvantaged communities. More than 100 consolidation projects have been completed or are ongoing in California, and many more communities are likely to pursue consolidations in the future. While consolidation offers many potential benefits for communities served by unreliable water systems, the costs and benefits associated with different consolidation options have not been well documented. During the current legislative session, legislators have introduced several legislative proposals to address perceived needs related to consolidation.

This project begins to take stock of past and current consolidation efforts—and the lessons they provide—with the goal of helping to accelerate cost-effective solutions for near-term water needs and long-term water system resilience. A daylong workshop held at UC Berkeley in March 2018 aimed to identify key lessons learned and emerging issues from California’s experience to date with small water system consolidations. This document synthesizes that facilitated dialogue, exploring the factors that drive and influence consolidations. It enumerates barriers to effective consolidations and identifies potential solutions for overcoming those barriers, highlighting which entities may be best situated to implement them.

In addition to laying the foundation for further constructive and inclusive dialogue, this work aims to inform the development of legislative and administrative policy proposals and a future research agenda.

With California’s drought risk, flood risk, and demand for water all increasing, effective monitoring is more important than ever to water decision making. Stream gages monitor the most basic vital sign of California’s waterways—stream flow.1 Stream flow data support day-to-day decisions about how to manage water and operate water infrastructure. In turn, those decisions have important implications for flood control and the water supplies upon which residential, industrial, agricultural, and environmental water users depend. Stream flow information also provides technical insights into basin hydrology, and those insights aid long-term water planning. As pressures on the state’s water systems intensify, the need for accurate and timely stream flow information will continue to grow. Opportunities for better water management created by groundbreaking legislation such as the Sustainable Groundwater Management Act (SGMA), the Open and Transparent Water Data Act, and Proposition 1 will be severely limited without an effective network of continuous stream gaging.

Groundwater sustainability depends on balancing aquifer inflows and outflows. Extraction (pumping of groundwater, typically for human use) and recharge (inflow of water to an aquifer from the land surface and streams) are central components of this water balance. Often, increasing demands for groundwater are exacerbated by stresses on limited surface water supplies. Changes in land use and shifting climate can result in less infiltration of precipitation into the ground, reducing recharge. Increasing water scarcity has led to increased pumping, and in turn, unsustainable management of groundwater in many basins, resulting in depleted supplies, degraded water quality, and other impacts. Conservation strategies have reduced demand in some basins, and there are also opportunities for increasing recharge; both strategies can help to tip the water balance towards sustainability. Natural recharge occurs across the landscape, in forests and fields, and below rivers and streams; it is a fundamental hydrologic process that is difficult to measure or control because it varies so greatly in location and timing. Managed aquifer recharge (MAR) is a set of techniques used to improve groundwater conditions by routing more surface water into aquifers. MAR can be applied at many scales, from street corner swales to regional systems. MAR based on the distributed collection of stormwater (“distributed MAR”) can be accomplished at an intermediate scale, generating hundreds to thousands of acre-feet/year of infiltration benefit. The promise of distributed MAR stems from its modest cost, and comparative simplicity of design and operation. Distributed MAR projects can be developed on private or public land across a groundwater basin, potentially generating more total benefit than smaller scale installations, and with less cost and complexity than regional MAR systems. A key challenge for developing distributed MAR projects lies in creating incentives that will motivate landowners, tenants, and other stakeholders to participate. Distributed MAR projects can be funded by a limited number of private participants, but public benefits may accrue more broadly. Developing and implementing policies to encourage the creation and operation of distributed MAR systems is a challenge at the frontier of groundwater management.

California’s freight system is integral to the functioning of the state, national, and global economies. It includes all forms of commercial transportation of freight to, from, and within the state and is responsible for one third of the state’s economy. The vehicles, equipment, and infrastructure that constitute this system are also collectively responsible for six percent of California’s greenhouse gas emissions, nearly 50 percent of statewide diesel particular matter emissions, and approximately 45 percent of statewide nitrogen oxides emissions. In order for California to meet its ambitious climate, air quality, and public health goals (particularly in disadvantaged communities), the state will need to realize significant reductions from the freight sector. These goals lead the nation. California’s air quality standards for health-harming “criteria” pollutants in all cases are equally or more stringent than corresponding national standards while SB 32 (Pavley, 2016) and AB 197 (E. Garcia, 2016) require the state to reduce its greenhouse gas emissions 40 percent below 1990 levels by 2030 and consider the social cost of greenhouse gas emissions, respectively.1 The Climate Change Scoping Plan is the defining document for how the state will meet these mandates. Meanwhile, AB 398 (E. Garcia, 2017) clarified the role of the state’s cap-and-trade program through the same year to help achieve the climate goals, while AB 617 (C. Garcia, 2017) requires the state to focus on improving air quality in vulnerable areas.

Technological developments based on the sharing of data among industry actors, pilot projects demonstrating the viability of more efficient processes or advanced technologies, and new infrastructure spending targeted at the needs of the freight system all have the potential to help achieve these needed reductions. However, without policy support from state legislators and environmental, transportation, utility, and energy regulators, in addition to increased access to industry data to facilitate the most promising technological developments, Freight accounts for approximately 6% of California’s greenhouse gas emissions, 45% of nitrogen oxides emissions, and 50% of particulate matter emissions. Delivering the Goods: How California Can Create the Sustainable Freight System of the Future 2 the system is unlikely to undergo the changes necessary to keep pace with state climate and air quality goals. In response, the state issued the California Sustainable Freight Action Plan (the “Freight Action Plan”) in 2016, which details plans to integrate investments, policies, and programs across several state agencies to help realize a collaborative vision for California’s freight transport system. The Freight Action Plan identifies key characteristics we need to see in California’s future freight system to achieve the state’s environmental goals while maintaining economic competitiveness and improving efficiency. As part of the implementation of the Freight Action Plan, the interagency team convened experts from government, industry, and environmental, and advocacy groups for a two-day discussion in July 2017 (all participants are listed in Section IV) to identify challenges to building the system of the future as envisioned in the Freight Action Plan, as well as potential solutions to those challenges. The Center for Law, Energy & the Environment (CLEE) at UC Berkeley School of Law facilitated the convening and prepared this report, which serves as a summary of the discussion. The first day of the discussion focused on participants’ own vision and goals for achieving a sustainable freight system and the challenges they anticipated, while the second focused on a range of near- and long-term solutions to those challenges.

California’s Sustainable Groundwater Management Act (SGMA), passed in 2014, recognizes and addresses connections between surface water and groundwater. The statute is California’s first statewide law to explicitly reflect the fact that surface water and groundwater are frequently interconnected and that groundwater management can impact groundwater-dependent ecosystems, surface water flows, and the beneficial uses of those flows. As such, SGMA partially remedies the historically problematic practice of treating groundwater and surface water as legally distinct resources. SGMA requires groundwater sustainability agencies (GSAs) to manage groundwater to avoid six undesirable results, including significant and unreasonable adverse impacts on beneficial uses of surface water. While this aspect of SGMA is clearly important, significant uncertainties exist regarding how GSAs will actually define and achieve this goal. Addressing SGMA’s requirements for groundwatersurface water interactions will be difficult. Defining the issues at stake in any given basin, let alone successfully balancing the range of uncertainties and potentially conflicting interests, will pose challenges for many GSAs. No clear, pre-defined formula exists to guide GSAs in determining what significant and unreasonable depletions of interconnected surface water will be, or whether planned actions will sufficiently avoid them. Yet they are required to do so. Many GSAs will face pressure to aggressively address impacts on surface water in their basin. Many will face equal or greater pressure not to draw the line. Nevertheless, it will fall to the GSAs to make a determination, and to defend it in their groundwater sustainability plans (GSPs). Therefore, GSAs will likely take on some level of risk—of successful political opposition to their GSP, of succesful legal challenges to their GSP, of their GSP performing ineffectively, or of all of these outcomes. Given the aggressive timeline inherent to SGMA, addressing this risk early will be crucial for preserving management options. Challenges and risk are not the whole story, however. The process of addressing groundwater-surface water interactions also offers GSAs an opportunity to help communities and other stakeholders resolve, or avoid, difficult conflicts, and to do so in lasting ways. While California law has only recently begun to seriously address conflicts between surface and groundwater uses, those conflicts have been occurring for decades, and in some places for over a century. SGMA, in other words, did not create conflict between groundwater pumping and beneficial uses of surface water; instead it created an opportunity—as well as an obligation—to respond to those challenges. Embracing that opportunity will not be easy, but GSAs that take SGMA as an opportunity to resolve longstanding issues can do lasting good. The research presented here examines some of the legal and institutional questions that will inevitably arise as GSAs seek to address groundwater-surface water interactions under SGMA. The core goal of this report is to help parties identify and address these questions, and ultimately to let GSAs and stakeholders manage groundwater-surface water interactions proactively and effectively.