Originally posted at the Public Policy Institute of CA.
By Lori Pottinger.
The drought has been a stress test for California’s water system. Brian Gray—an adjunct fellow at the PPIC Water Policy Center and professor emeritus at UC Hastings College of the Law in San Francisco—is a coauthor of our new report Allocating California’s Water: Directions for Reform. We talked to him about its findings.
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PPIC: How did our water allocation system fare during the drought?
Brian Gray: California is straining to meet a range of demands while also maintaining a healthy environment. Water rights matter most during times of shortage. In fact, their purpose is to define who is entitled to use water when there isn’t enough for all right-holders.
This drought was the first time the State Water Board curtailed water rights since 1977. Some senior water right-holders successfully challenged the board’s authority to apply the priority system to them. The board found it difficult to ensure that enough water remained in rivers to support at-risk fish species (many of which are protected by federal and state endangered species acts).
Because this drought is a harbinger of a “new normal,” we wanted to harvest its lessons. We found three key areas for improvement.
First, we believe the state can maintain its water-rights seniority system, but it must improve how water rights are administered. We should eliminate an archaic distinction between categories of water rights by bringing all surface water rights under the water board’s jurisdiction. We also need better information on water use and availability to enable more effective, real-time decision making.
Second, although we have legal protections for the environment, we don’t have a clear process for allocating water to critical environmental needs during droughts. We recommend that the water board define the amount of water required to protect fish, wildlife, and water quality within each watershed. This environmental water, along with water needed to protect public health and safety, would have top priority.
Finally, during droughts we need flexibility to allocate water to vital uses (such as domestic supply, permanent crops, and the environment) that may be short of water. Trading water can provide that flexibility. Yet during this drought trading was limited, in part because California’s water transfer rules are fragmented and inconsistent. We need to make it easier to trade water during droughts.
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PPIC: Why shouldn’t the state create a new water rights system?
BG: There have been calls for a complete overhaul of California’s water rights system, which is quite complex and doesn’t always work smoothly. It’s unlikely that anyone would design this system today if starting from scratch. But water rights are property rights, so a wholesale change would raise significant constitutional questions under federal and state law. It’s probably better to maintain our system as long as we strengthen the water board’s oversight of water rights, and increase transparency and flexibility of water allocations. Improving information is key. Effective management requires that we know who has what water rights, how much they are diverting, and how much they are returning to the system following use.
We think the time is right to start making these changes toward a more efficient and fairer water rights system. The Sustainable Groundwater Management Act, the governor’s emergency drought orders, and other initiatives demonstrate that the state is ready for reforms. Many of our recommendations are not nearly as challenging as these. And they will help us manage water better during the next drought.