On January 27, 2014, Governor Brown released a California Water Action Plan (CWAP) to address the ongoing drought and long-term challenges such as environmental protection, population growth and climate change. While the document was released several months ago, the implementation actions are only now starting to be clarified, especially regarding groundwater. This post reviews that document and evaluates the various actions identified in the CWAP from the perspective of a legal practitioner.

1.    Conservation

The CWAP encourages greater water use efficiency in both the urban and agricultural sectors. The state proposes to do this by setting a goal of maintaining 2000 urban water use levels through 2030 despite anticipated population growth, funding research programs, developing efficiency standards, eliminating barriers to co-funding projects that reduce both water and energy usage, and promoting local conservation programs and ordinances.

While the CWAP makes conservation the first item on its list, it fails to identify any decisive action to be taken by the state or local agencies. Improving urban water efficiency is no mystery: we must replace older, inefficient indoor fixtures and appliances with newer models that meet certain standards, and we must reduce the irrigation of outdoor landscaping through either better irrigation management or the replacement of high-water using plants. A good roadmap was published over 10 years ago by the Pacific Institute in Waste Not, Want Not: The Potential for Urban Water Conservation in California (2003).

The difficult questions are how to implement such a change, and how to pay for it. Should the need for new fixtures and appliances be imposed on new development through offset requirements, or should water purveyors (both public and private) be given the authority to require greater efficiency from existing properties as a condition of continued water service? Should each property owner be responsible for replacing their own fixtures and appliances or should funding be handled through the state or local water purveyors for recovery through utility bills? How should outdoor irrigation reduction be achieved, through mandatory standards or education and incentive programs? The CWAP does not have any recommendation on those issues.

2.    Regional Self-Reliance and Integrated Water Management

The CWAP notes that local development of water supplies can relieve pressure on major state sources such as the Sacramento-San Joaquin Delta system and the Colorado River. It also encourages the integration of regional water management between agencies and across functional areas such as flood control, stormwater management, surface water and groundwater supplies, wastewater treatment and reuse, and use of treated brackish or contaminated water. The administration proposes streamlined permitting for local projects, including those for reuse and desalination, and increased funding from the state for integrated planning efforts, especially those that will assist economically-disadvantaged communities.

This proposal encourages integrated planning while keeping existing water institutions largely intact. It does not propose significant consolidation of local agencies (see an article on the myriad agencies in California water here) or realign the tasks performed by those agencies. For example, in many areas water and wastewater are managed by separate agencies, with sometimes competing goals and business plans, in particular related to recycled water. The CWAP does not address the potential for changing that organization. An argument could be made that existing institutions are best left in place for now, so that agency staff can focus on drought response rather than new titles and tasks, but the CWAP should address whether major organizational change could promote better water management for the long term or if the drought worsens.

3.    Achieve Co-Equal Goals for the Delta

The Delta provides water to two-thirds of the state’s urban population, millions of acres of agriculture and a rich variety of ecosystems and wildlife. The Delta faces a complex of challenges, including competing water supply demands, fragile fisheries, unreliable water transportation infrastructure, water quality degradation and vulnerable levees.

Governor Brown has been active in promoting the Bay Delta Conservation Plan (BDCP) since his election, and the CWAP continues that focus. The BDCP would implement a number of measures for management of the State Water Project (SWP), Central Valley Project (CVP) and other infrastructure, most notably the construction of two tunnels to transport Sacramento River water under the Delta in lieu of the current practice of circulating it through a maze of sensitive surface waterways. This set of projects has been ongoing for several years, and the CWAP continues that process without substantial changes.

4.    Protect and Restore Ecosystems

There is a broad consensus among California water managers in favor of protecting sensitive ecosystems and species, both for their intrinsic natural value and their functions for maintaining water supplies and quality. The CWAP includes a number of programs that were already underway for restoration of fisheries in the San Joaquin and Klamath rivers, protection of the Salton Sea and Lake Tahoe, acquisition of water supplies for wildlife refuges in the Central Valley, elimination of barriers to fish migration and enhancement of instream flows in certain stream systems.

While the CWAP continues existing programs for ecosystem protection and restoration, it does not contain substantial new actions. It is easy to understand the criticism that environmental advocates have of the CWAP, and without the introduction of major new initiatives or sources of funding, implementation of the plan is likely to continue the normal melodrama of water supplies versus the environment.

5.    Manage and Prepare for Dry Periods

The CWAP notes that “[w]ater supply reliability is critical to maintaining California’s economy.” In response, it provides that the Department of Water Resources, in collaboration with the U.S. Bureau of Reclamation, “will implement a series of administrative solutions through a transparent process to make water delivery decisions and propose options to address water quality and supply objectives in extreme conditions” and “will exercise the maximum administrative discretion and flexibility possible to address the current dry conditions now and into 2014.”

This raises two simple questions: if all the state needs to do is implement administrative solutions through the exercise of maximum administrative discretion, why hasn’t it done so already? And does this mashup of bureaucratic lingo actually mean anything?

6a.    Expand Water Storage Capacity

Many California water managers would like to have expanded water storage capacity, which would help mitigate hydrologic variability, including the impacts of climate change. The CWAP repeats the mantra that additional storage is needed, but does not propose or support any new storage projects. The administration does promise to work with the Legislature to make funding available to share in the cost of storage projects put forward by local partners, including assistance with feasibility studies. The CWAP cites the Sites Reservoir as an example, although it stops short of fully supporting that or any other proposed project. The plan also speaks about the value of groundwater storage projects, but does not identify any specific projects for implementation.

My reading of the CWAP language on water storage is that the administration would support groundwater storage projects that are part of comprehensive management efforts (see Action 6b), because there are strong calls for regulation of groundwater. Otherwise, groundwater and surface water storage projects are too controversial for the administration to endorse. The mention of Sites Reservoir could lead to future support of that project, if the local sponsors can reach agreement and overcome some unknown quantity of opposition, but Governor Brown will wait for those undefined criteria to be satisfied before endorsing the project.

6b.    Improve Groundwater Management

The CWAP proposes increased state involvement in groundwater regulation. Historically, groundwater has been managed at the local level, through court adjudications and adoption of management plans by local agencies, but there has been a steady drumbeat in favor of more state oversight of groundwater since the last round of water legislation in 2009. The administration asserts in the CWAP that it will expand and fund the California Statewide Groundwater Elevation Monitoring (CASGEM) Program, update Bulletin 118, promote increased levels of groundwater recharge and storage, and work with the Legislature to create new legal authority for the state to encourage local groundwater management or step in to directly regulate groundwater use.

Of these actions, the promise to work on new legislation is the most important. The exact content of such legislation is in development, and I will devote a post soon to the bills that have been introduced, Assembly Bill 1739 and Senate Bill 1168. It is clear, however, that the single most significant action planned by the administration under the CWAP is this push for increased groundwater regulation by the state.

7.    Improve Water Quality for Disadvantaged Communities

There have been several high profile incidents in recent years when water systems serving disadvantaged communities have had difficulty meeting drinking water standards. Most of these communities have been composed of farmworkers in the Central Valley. In some cases, the cause has been new regulations such as the arsenic rule, while in others, it has been related to nitrate pollution or failing infrastructure. The CWAP asserts that the administration will work with the Legislature to identify a stable, long-term funding source to help disadvantaged communities comply with drinking water standards, and will monitor the status of small systems that may be vulnerable to drought.

While state funding may help small water systems, often a better long-term solution is consolidation of those systems into a larger network owned by a public agency or private company. Consolidation allows for economies of scale and inclusion within institutions that are operated and managed more responsibly and professionally. Long-term subsidization of local utility rates by the state is unlikely to be successful in light of competing budgetary needs. A better solution would be for the state to use the California Department of Public Health and Local Agency Formation Commissions to compel consolidation of small government-owned water utilities into larger entities, or to establish a program operated through the California Public Utilities Commission to encourage acquisition of those systems by public utility companies, provide one-time acquisition funding (with the benefits going exclusively to ratepayers) and set water utility rates on a statewide or regional basis.

8.    Increase Flood Protection

The CWAP reports that 7 million people and $580 billion in assets are exposed to flood hazards in the state, which is exacerbated by a lack of sufficient and stable funding for flood management. The administration proposes actions to streamline and consolidate federal, state and local permitting for flood control improvements, create a Delta levee assessment district, identify state funding priorities for Delta levees, prioritize funding to focus on the highest risk areas, and encourage flood projects that factor in the impacts of climate change and have multiple benefits such as increasing water supply reliability, conserving farmland or restoring ecosystems. These are good changes that the administration can adopt in implementing existing programs, and do not involve significant new actions or funding.

9.    Increase Operational Efficiency in the SWP and CVP

The SWP and CVP are massive water storage, diversion and delivery projects with numerous operational constraints that have been put in place for the putative benefit of project contractors, the state and federal governments, and multiple environmental resources, such as instream flows, water quality and endangered species. In recent years, it has become clear that the standard operating rules do not produce optimal benefits for any of those stakeholders, let alone all of them together. Neither the SWP nor the CVP is organized in a manner that encourages flexibility or innovation. These challenges are well known to a broad range of water managers, users and environmental advocates.

The CWAP acknowledges those deficiencies and reports that the administration will work with the federal and local governments to improve SWP and CVP operations. This may include improving data gathering and analysis, developing new models and analytical tools for the Delta and endangered species and improving coordination between the agencies and water contractors. Since the dry year of 2009, some changes have been made in SWP and CVP operations, and the CWAP will continue making incremental improvements.

Despite these efforts, the SWP and CVP are likely to remain incredibly rigid in their management of the two water projects and the Delta. Both projects are bound by water delivery agreements, biological opinions and court orders that stifle flexibility. The Department of Water Resources and U.S. Bureau of Reclamation are bureaucratic organizations full of personnel who block any real changes. The water contractors often advocate for operational rules that do not maximize project benefits for all stakeholders, but only their own narrowly defined interests. Environmental advocates sue everyone in sight unless they get their way on all points. Both the SWP and CVP actively block use of their infrastructure by others, even when doing so would allow the use of more water. The Legislature’s past attempts to reform the projects have generally failed. Without a near complete overhaul of the SWP and CVP, it would be difficult to make the projects operate efficiently, and that would require a political will that is more rare than the Delta smelt.

10.    Financing

All actions to improve water supply reliability for California—whether included in the CWAP or not—will require funding. The administration proposes to develop a strategy that will leverage various sources of project funding, including federal grants and loans, state and local general obligation bonds, utility revenue bonds, local taxes and assessments, user fees, beneficiary fees and private capital. The CWAP also proposes to investigate user and polluter fees and to clarify Proposition 218 as it relates to water related fees and taxes.

What is obfuscated, however, is that all funds must ultimately come from the residents and businesses that own property and operate in California, in the form of either utility rates or taxes. There is no outside source of funding (to be distinguished from financing, of which there are many outside sources, all of which must be repaid). The CWAP does not address funding in this manner, and the administration does not seem interested in trying to educate Californians (even those wonkish enough to read the CWAP) about this reality. This is likely the most severe challenge to Actions 1 through 9 above, that there is no new source of funding proposed, and no honesty about that fact.

11.    Conclusions

The CWAP properly identifies the major challenges facing California’s water supplies and the broad actions that will need to be taken to make the state’s water system sustainable for infrastructure, the environment and the economy. It includes many of the maxims that have come to be broadly accepted by water managers over the past decade, such as that conservation is good, the environment should be protected and restored, and we should pay attention to the water-energy nexus.

What the CWAP generally fails to do is set forth specific actions, opting instead for the sort of banalities that compose a neat white paper but do not result in any real changes. For example, although the CWAP asserts that additional water storage will be needed, it does not propose a single new surface reservoir or groundwater bank. Although it promotes water conservation, it does not identify a single action that will drive the state or water purveyors to mandate improved efficiency from urban customers. It also fails to direct any policy in favor of water transfers, which are necessary for increased agricultural efficiency.

Other than the shift of oversight for drinking and recycled water from CDPH to the SWRCB, the CWAP does not propose any change in state or local water institutions, which are perhaps the greatest impediment to change. The most significant proposed action, new groundwater regulation by the state, does not directly result in any projects being implemented, but only creates more government. Finally, the CWAP does not identify or seek significant funding for any action.

It remains to be seen whether Governor Brown and the Legislature are serious about achieving sustainable water supplies for California. The drought of 2013-2014 has the attention of elected officials and many citizens of the state, but it is not clear that the will exists to take the actions truly necessary to meet the state’s water challenges. The CWAP includes 10 modest, attainable actions, but the current drought and future uncertainties call for a plan that goes to 11.