Guest Commentary: Agricultural water users weathering California’s regulatory storms

Despite complications to water users around the state, proactive efforts seeking creative solutions allows for growers and food processors to achieve their goals without having to become entangled in disputes or litigation.

As a water resources lawyer based in Sacramento, Calif., I see evolving regulatory processes intersecting with access and reliability of surface water and groundwater supplies. Despite complications to water users around the state, proactive efforts seeking creative solutions allows for growers and food processors to achieve their goals without having to become entangled in disputes or litigation.

For surface water supplies, two key processes are underway by the State Water Resources Control Board (State Water Board or SWB) which both implicate water availability throughout the State of California.

The first is referred to as California WaterFix which relates to a controversial plan proposed by the governor to build two large tunnels for carrying fresh water from the Sacramento River and under the Sacramento-San Joaquin Delta (“Delta”) for deliveries south of the Delta through the federal government’s Central Valley Project and the California Department of Water Resources’ State Water Project.

This project currently centers on potential injuries to “legal users of water” whether that individual or entity applies the water to irrigation, municipal, or some other beneficial use.  The anticipated cost of the project is $15 billion with financing yet to be determined. 

The second statewide regulatory process underway involving surface water is an “update” to the Water Quality Control Plan. This plan is designed to develop and implement measures for protecting beneficial uses in the Delta.

In doing so, the SWB evaluates water quality criteria and river flow conditions primarily involving the San Joaquin River and Sacramento River (which are the two largest rivers providing inflow to the Delta). The SWB is poised to hold public workshops and to evaluate data in 2017.

For groundwater supplies, the relatively new Sustainable Groundwater Management Act, commonly referred to as “SGMA” (pronounced, sigma), is an entirely new and mandatory set of laws and regulations aimed toward managing groundwater so that the groundwater is “sustainable” over the long term.

SGMA is designed to defer to local public agencies for regulating groundwater, which is to say local agencies will be seeking to collect from groundwater users data including groundwater use as well as levying fees or assessments for administration and enforcement costs related to implementing SGMA.

These local public agencies, referred to as Groundwater Sustainability Agencies, fundamentally are charged with ensuring groundwater levels rise so that aquifers can be used for decades to come without contributing to land subsidence or other “undesirable results” as described in SGMA.

Implications arising from these ongoing regulatory efforts, both for surface water and groundwater users, are new regulations for how much, where, and when water may be used.  Contributing significantly to regulatory decision-making is the hydrologic cycle of rain and snow fall which in recent years clearly has been low, though positive indicators exist for this being a strong water year.

Water users are well served to undertake, if not doing so already, efforts to develop strategies and tactics that adapt to the evolving regulatory systems because we no longer live in a status quo environment, evident most recently with enactment of SGMA.

And even though SGMA essentially says that it cannot change a water right, the practical impact is that many water rights holders are likely to be directed to reduce their groundwater extractions (and the SWB might do the same for diversions of surface water). 

Ultimately, the regulatory environment is becoming one of paying more for less water.

To avoid costly and often uncertain outcomes in disputes, solutions might exist by pursuing one or more of the following projects designed to create flexibility or “new” water supplies:

1 - Conjunctive use between surface water and groundwater;

2 - Transferability of water supplies between water users within the same watershed or groundwater basin; and

3 - Tapping into recycled water supplies.

Each of these projects bear their own strengths and weaknesses, but the net result of proactive efforts is likely to bear better results than simply going with the flow.

(Note: Wes Miliband is Of Counsel in the Sacramento, Calif. office of Stoel Rives LLP)

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