Originally posted at the Public Policy Institute of CA.
By Brian Gray.
The presidential election has raised questions about how changes in federal environmental policy could affect California’s water resources management. Concerns include the potential loosening of endangered species protections and changes to federal regulatory jurisdiction under the Clean Water Act. These questions are especially pronounced in California, where the United States is both an environmental regulator and operator of several of the state’s largest water projects.
While there are areas of uncertainty, California’s water rights and environmental laws are both robust and comprehensive, and thus will provide something of a firewall to changes in federal policy. Although many of these laws apply in tandem with their federal counterparts, California’s laws are also largely independent of federal environmental standards. Here are a few examples.
Reasonable use and the public trust: The California Constitution’s “reasonable use” requirement and the state’s public trust doctrine recognize a strong and continuing public interest in protecting the ecological integrity of the state’s waters. In 2009, the California Legislature declared that these principles “shall be the foundation of state water management policy.”
Water rights: The State Water Board has permitting authority over a majority of surface water rights, including those for the federal Central Valley Project (CVP) and California’s own State Water Project (SWP). These projects supply water to more than 25 million residents and businesses across the state and to almost four million acres of farmland in the Central Valley. Permit conditions require the projects to release water from reservoirs and to limit pumping from the Delta to protect water quality, fish and wildlife, and other instream uses throughout the Sacramento–San Joaquin Delta ecosystem.
Federal law directs the US Bureau of Reclamation to operate the CVP in compliance with all requirements of California law, including conditions in its water rights permits. This is an important mandate because CVP operations are coordinated with the SWP, and the two projects’ water supply and environmental stewardship functions must be synchronized.
The bureau also controls the distribution of water diverted from the Colorado River for agricultural and urban uses in Southern California. Although federal law generally governs, the State Water Board has significant authority over the use of this water through its constitutional authority to prevent waste and unreasonable use.
Water quality: The State Water Board and the nine Regional Water Quality Control Boards also set water quality standards and issue permits governing discharges of pollutants. California’s water quality laws implement the federal Clean Water Act, but they also function independently. California often sets stricter pollution limits than required under federal standards, and the state permitting system applies more broadly than its federal counterpart (covering discharges to groundwater, for example). Equally importantly, California’s water quality laws do not depend on the Clean Water Act for their existence and would continue even if significant changes are made in federal law.
California’s authority to protect its water resources will be largely insulated from changes in federal environmental policy.
Stream flows: In addition to the State Water Board’s power to protect stream flows through water quality standards and the reasonable use and public trust doctrines, the California Fish and Game Code compels all dam operators to release water to support fish. In litigation to restore flows and salmon to the San Joaquin River, the federal courts ruled that this law applies to the CVP.
Endangered species: The California Department of Fish and Wildlife has extensive authority to protect vulnerable species under the California Endangered Species Act. Although the state statute is more limited than its federal counterpart, it does prohibit the unauthorized “taking” of protected species. If federal endangered species policy were to change, the department could use this authority to place conditions on water project operations to prevent or minimize harm to state-listed species. The department also could expand the list of state-protected species to fill any gaps created by federal policy changes.
Wetlands: The federal government has extensive jurisdiction under the Clean Water Act to regulate activities that may alter wetlands, and the state and regional water boards often implement this federal law. But California also has independent authority to protect wetlands through discharge permits and land use regulations. This regulatory authority would continue even if, as expected, the new administration reduces the scope of the federal wetlands rules.
In light of these laws, California’s authority to protect its water resources will be largely insulated from changes in federal environmental policy. Of course, Congress could amend the statutes that require federal compliance with California law. But such a change would contradict a long history of federal deference to state water rights law and support for state administration of water quality protections.
These policies reflect Congress’ understanding of the benefits of comprehensive and integrated water resource management and its recognition that the states are best suited to decide how to allocate and manage water in light of local conditions and local needs. Indeed, in the recent federal legislation that changes endangered species management in the Sacramento–San Joaquin Delta, a large and bipartisan majority in both houses of Congress reconfirmed the United States’ continuing “obligation to act in conformance with applicable state law, including applicable state water law.”
Going forward, it would be extraordinary for Congress to depart from this foundational policy.