Transcript www.a-e

21st Century Challenges for California
Water Law
Stefanie Hedlund
Best Best & Krieger LLP
Why do water lawyers
love California?
“In California,
whiskey is for drinking, and
water is for fighting.”
-- Mark Twain
Water Supplies
• Surface Water
• Groundwater
• Recycled Water
State Water Project
• Development delayed by Depression, then WWII
• 1959 - California Water Resources Development Bond Act,
aka the Burns-Porter Act
– Authorized $1.75 billion in bonds to assist in financing
the construction of the state water facilities.
• 1960 – voters approved the Act & the bonds
• Met contracts w/ SWP
• Water permits granted to DWR
State Water Project (SWP)
• Never fully built out – paper water v. wet
water dilemma
• Contracted to deliver 4.2 MAFY
• D-1485 estimated dependable supplies @ 2.3
MAFY
• That # may go down, depending on effects of
other environmental laws
State Water Project
• About 1/2 of the SWP
supply comes from Lake
Oroville in Butte County
• Rest is developed from the
Sacramento-San Joaquin
Delta
• Pumped south from Tracy
into the California Aqueduct
• Some of the flows are reregulated in San Luis
Reservoir, a joint-use
facility
Themes in California Water Law
Connection Between Property Ownership and
Right to Use Water
All Water Rights Are Usufructuary (“Use”),
No Private Ownership
California has most complex water law in the
United States
• Surface water - riparian, appropriate,
prescriptive
• Groundwater – overlying, appropriative,
prescriptive
“And you may ask yourself – Well … how
did I get here”
– The Talking Heads
The California Legislature
• 1850
• Probably late in the afternoon
Supply and Demand Problems
• In California, water is located where the people
aren’t
– Northern California water supplies
– Southern California water demand
• Concurrent growth of population, agriculture, and
industry
• New (post-facilities) environmental concerns
Riparian Rights
– Right of landowner next to surface water
to use enough water to meet needs of that
land
– Correlative and of equal priority
– Runs with land, not lost by non-use
– Not quantified
– Not regulated or permitted by State
Independence &
Statehood
• Inherited U.S. legal system – based on English
common law principles
• Riparian rights
– Right of landowner adjacent to a watercourse to flow
sufficient to meet needs of that land
– Correlative & equal
– Works well in wet environments like England
– Also applied to owners of land overlying groundwater
basins
Riverside County Early
1900’s
• Riparian rights do not work well in arid
lands
• By 1887, Colorado, Utah, Idaho, Montana,
Wyoming, New Mexico, the Dakotas and
Arizona had legislatively eliminated them in
favor of appropriative rights
• What was happening in California?
The Gold Rush
Mining – large-scale
irrigation diversions in
mining ditches
Miners didn’t own land
Prior appropriation
Appropriative Water Right
• Right to divert specific quantity to specific
location for specific purpose(s)
• Does not depend on ownership of land
• “First in time, first in right”
• “Use it or Lose it”
• May be used on lands away from streams or
outside a watershed
• All other western states eliminate riparian
rights
• In 1886 California Supreme Court writes 100
page decision keeping both riparian and
appropriative rights
• Now there are a small number of riparian
rights but…
Groundwater Law
Early 1900’s - groundwater starts to emerge
as a source of water
Percolating Groundwater
English law is Rule of Capture
Groundwater Law
California Supreme Court rejects rule of
capture
Effectively adopts riparian right for
groundwater (“overlying right”)
Overlying Right
• To use percolating groundwater must own
overlying property
• Must be used on overlying property
• Not quantified
• Correlative
• Not lost by non-use
• Not regulated or permitted
Appropriative Right
•
•
•
•
•
•
•
Right to pump specific quantity
Does not depend on land ownership
“First in time, first in right”
Not permitted or regulated
Lost by non-use
Must be surplus to overlying uses
Almost all municipal and industrial uses are
appropriative
California has no statewide regulation of
groundwater
Texas is only other State that doesn’t have some
type of comprehensive groundwater regulation
Where are We Now?
Surface Water
• Riparian rights unregulated
• Appropriative rights regulated and prioritized
based on time use began, not on economic
value or current societal values
Where Are We Now?
Underground Water
Largely unregulated, agricultural uses
(overlying uses) generally have priority
Where Are We Now?
Old Rule of Ground Water Law:
“Pump Until You Get Sued”
Where Are We Now?
Revised Rule of Groundwater Law:
“Pump Until a Judge Tells You Not
To”
Current Challenges
Groundwater Regulation
• Unquantified overlying rights
• Conjunctive Use in unregulated groundwater
basins
• Ownership of stored underground water
• Overlying priority
Current Challenges
Recycled Water
• Water Code Section 1210 states that owner of
treatment plant holds exclusive right as
against suppliers
• After water enters ground?
• After water transported in river?
• Must it be used directly?
Current Challenges
Environmental Uses
• Water rights for instream uses?
• Endangered Species Act
Current Challenges
Land/Water Rights Connection
• Should it be severed?
• Chile (privatized resource)
• Australia (public resource) – freely
transferrable
• Pros – economically efficient, promote
reallocation
• Cons – social and environmental costs
Water Planning
 Statutory and case law from the last 10 years, and
particularly the last 5, mandate that water supply
planning be a critical part of the California
Environmental Quality Act (CEQA) process for new
development.
 Water supply planning requirements are most acute for
large projects.
Relevant statutes related to water supply
• In 2001 the Legislature enacted two statutes related
to the water supply planning process
– “SB 610” (Water Code, § 10910 et seq.)
– “SB 221” (Gov’t Code, § 66493 et seq.)
• These statutes apply to large scale development
projects at the initial stage of environmental review
(SB 610), and also at the subdivision map stage (SB
221), to ensure that water will actually be available
when projects are built.
•
•
Under SB 610 the city or county (i.e., the land use authority) must request a
“water supply assessment” (WSA) from the applicable public water system
provider. If there is no water provider, the city or county must prepare the WSA.
Water Code, §10912 defines “Project” as any of the following:
– Residential development of more than 500 dwelling units.
– Shopping center or business employing more than 1,000 persons or with more than
500,000 square feet of floor space.
– Commercial office building employing more than 1,000 persons or with at least
250,000 square feet.
– Hotel or motel, or both, having more than 500 rooms.
– Industrial, manufacturing, or processing plants, or industrial parks planned to house
more than 1,000 persons, occupying more than 40 acres of land, or having more than
650,000 square feet of floor area.
– A mixed-use project that includes one or more of the above.
– A project that would demand an amount of water equivalent to, or greater than, the
amount of water required by a 500 dwelling unit project.
• If a public water system has fewer than 5,000 service connections, then
"project" means any proposed development that would represent an
increase of 10 % or more in the number of the public water system's
existing service connections (or call for an equivalent amount of water).
• The WSA must describe whether the project has an adequate water supply
under existing and future conditions. More specifically, the WSA must
evaluate whether the water supplier’s “projected water supplies” will meet
the “projected water demand” for the project, when considered in light of
“existing and planned future uses” that are or will be dependent on such
supplies, “including agricultural and manufacturing uses.” (Water Code,
at § 10910(c)(4).)
Summary of SB610 and SB221
• If a public water system has fewer than 5,000 service connections, then
"project" means any proposed development that would represent an
increase of 10 % or more in the number of the public water system's
existing service connections (or call for an equivalent amount of water).
• The WSA must describe whether the project has an adequate water supply
under existing and future conditions. More specifically, the WSA must
evaluate whether the water supplier’s “projected water supplies” will meet
the “projected water demand” for the project, when considered in light of
“existing and planned future uses” that are or will be dependent on such
supplies, “including agricultural and manufacturing uses.” (Water Code,
at § 10910(c)(4).)
Conclusions

A City or County must have a Water Supply Assessment prepared fo r any large project
undergoing CEQA compliance, e.g. specific plans or other large d evelopment.

The water supply agency’s Urban Water Management Plan may be rel ied upon if it
anticipated the demand from the Project and contains all Water C ode requirements.

WSAs must look forward at least 20 years, covering all types of water conditions.

The water supplier must offer a plan to acquire additional suppl ies if adequate supplies are
not available.

If firm water supplies are not available, specific sources of wet water must be identified
and analyzed. Illusory (paper) water supplies cannot be relied upon e.g. unfulfilled State
Water Project entitlements purchasing water rights may work. Ig noring the water
deficiency problem altogether, or calling the potential lack of water “speculative,” will also
not work.