Stanford Law School report

California Water Governance for the 21st Century

 
 

ABSTRACT 

Californians must . . . change their relationship toward the environment and water.

The declining health of California’s water systems, combined with the growing challenge of climate change, calls on us to rethink how we use and manage water. Water is a public and environmental good, of a critical, life<sustaining nature. As such, the basic water needs of both humans and natural systems must be prioritized over other water uses. 

However, not only are we failing to meet basic needs, but we are also inefficiently and inequitably allocating water more generally around the state. As a result, both California’s people and environment struggle with current and future threats to water reliability. 

Water markets have been offered as a key solution, but the concept of markets is inherently at odds with the nature of water as public and life<sustaining. Our fixation on water as a substance to be cordoned off and profited from is growing increasingly problematic, with water becoming ever more privatized. 

This paper recommends that we instead step back and do two things: first, better implement all the laws we have, and second, develop a water vision and strategy that meets 21st century challenges. Both efforts call on us to take a broader view of our water governance system in light of the evolving understanding of water as a public and environmental good, and to incorporate the ethics of that understanding into our decisionmaking. Ethics is a topic rarely addressed but critical to the wise use of water. The moral test of government, and the measure of its strength, is how it treats its most vulnerable members – particularly with respect to meeting their most basic needs. 

EXECUTIVE SUMMARY 

Built for an earlier era, California’s water allocation system is near the breaking point. 

Vast amounts of increasingly precious freshwater move through a network of storage and conveyance facilities for delivery to distant farms and cities that hold a hodge<podge of historic water use “rights.” The result of this ad hoc system is both rampant inefficiency and growing inequality. 

To date, state officials have assiduously avoided the kind of comprehensive management of water resources that is necessary to prioritize basic human needs and safeguard natural systems for future generations of Californians. But as the Sierra snowpack predictably diminishes and periodic droughts worsen in both magnitude and duration with the changing climate, California stands at a crossroad. We can either continue business as usual, leading inexorably to ever<greater user inequities and the almost<certain collapse of our remaining aquatic ecosystems. Or we can chart a different course for the twenty<first century, one that arises from the values embedded in contemporary notions of the public trust and our responsibilities as stewards of water. This paper argues for the latter path. 

In this paper, we outline the state’s current water management and allocation strategies and display how these fail to meet current needs. In particular, we analyze in detail why water markets – the state’s current idealized solution to our water woes – will further entrench our dysfunctional water uses, directing water toward the most profitable use, rather than toward the most socially and ecologically beneficial use. We then argue that in order to holistically transform our water governance to meet social and ecological demands, we need to embrace a new water ethic in which the special nature of water as life<giving and undeniably public, rather than private and for<profit, is recognized. 

Consistent with this water ethic, we present alternative water strategies and next steps, including broadening the suite of voices and disciplines active in setting the water vision and strategies for the state. We recommend applying vastly under<utilized legal tools, such as the waste and unreasonable use and public trust doctrines; developing and prioritizing instream water rights, to ensure that waterways’ needs are addressed; gathering data on surface flows, groundwater levels, and water withdrawals and uses; enforcing water use rights violations, including direct penalties for violating water right permits and streamlined action on violations of the waste and unreasonable use doctrine; and increasing agricultural and urban water efficiency while reducing demand, so that efficiency savings are not simply translated into more use. These reforms, implemented from the ground up with broad public participation, will help the state more effectively manage scarce water resources for the benefit of humans and ecosystems alike. 

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