This year’s California Water Law Symposium on January 22, titled “The End of Paper Water: Unlimited Demands, Natural Limits & Reliable Supply,” sounded promising. Unfortunately, half of the panels danced around this thorny issue rather than addressing it head-on.
The symposium started strong, with a panel that discussed recent “show me the water” laws SB 221 and SB 610 and CEQA case law. The audience heard that paper rights to water have a lineage in California dating back to the 1800s, and that there has always been a mismatch between diversion entitlements and available water. This lawyerly shrug dodged the question of whether anything should be done to address this mismatch.
And the excesses of the Monterey Amendments were only alluded to; nobody was invited to justify them.
After that, the symposium veered away from its announced topic. Taking the place of DWR Director Mark Cowin, DWR Acting Chief Counsel Cathy Crothers delivered the keynote address. She went through DWR’s standard Delta Challenges script (164 levee failures in 100 years; conveyance to fix things, etc.) A footnote informed viewers that we face a 64% chance of catastrophic failure due to earthquake or storm in the next 50 years. However, for a region where levee failures are part of river existence, but where a flooded island is always a catastrophe the landowner, Crothers couldn’t explain clearly what the state means by “catastrophic.”
The Pacific Institute’s Peter Gleick opened the panel on conservation and water efficiency, arguing that efficiency means doing what we want to do, but with less water. Andrew Hitchings (of the Sacramento environmental law firm Somach Simmons & Dunn) talked about the Glenn-Colusa Irrigation District’s efficient use of recirculated water and argued that water use efficiencies need to make sense on a regional level – an argument that Delta water users will certainly support.
Mary Aileen Matheis of the Irvine Ranch Water District talked about the success of the District’s allocation-based rate structure (tiered pricing) in reducing water use. Jason Peltier talked about how efficiently Westlands uses water, inadvertently underscoring the value of supply reductions in encouraging efficiency.
After lunch, attendees heard about the 2009 Water Package, first from Delta Stewardship Council Chair Phil Isenberg. He was followed by Richard Roos-Collins touting the Bay Delta Conservation Plan. Roos-Collins urged stakeholders to stop complaining and start engaging. But his target seemed to be Delta people and environmental groups, not Westlands. This is, as always, outrageously unreasonable, since being at the BDCP table has always meant ceding final decision-making authority to the water exporters.
In answer to a question about the flow criteria adopted by the Water Board last year, Isenberg said that the Board’s decision wasn’t a public trust balancing of beneficial uses, and that establishing flows will be a “closer” issue on BDCP.
Southern California water attorney Chris Frahm stayed on the topic of dealing with natural limits, discussing Southern California’s strategies for reducing dependence on imported water. “Economic reality,” she said, “is the single most grounding thing.”
Winnemem Wintu Headman Mark Franco noted that in terms of water rights, California’s native American tribes are “first in time, first in use.”
The last panel of the day took on “Making Secure Water Rights & Restoration Co-Equal.” Hastings law professor Brian Gray called for water for fish first and asserted that insecurity in water rights is a good thing. He noted that Westlands became more efficient under the pressure of insecurity.
NRDC’s Felicia Marcus commented that the co-equal goals in the 2009 legislation felt like a win/win for water agencies and environmentalists. (Of course, that “success” was only possible because the legislation made the interests of the people of the Delta itself a secondary issue, or as we say coequal to nothing.)
Hastings law professor John Leshy, the panel’s moderator, brought the discussion back around to the day’s central topic by asking panelists whether secure water rights and habitat restoration can actually be co-equal. Panelist Jay Lund of the UC Davis Center for Watershed Studies responded that absolute water security is not possible, so we manage insecurity by preparing for contingencies. He noted that asking how much water fish need is like asking how much air people need.
Lund observed that paper water reflects the social value of water, but paper water rights should reflect the real water in the system.
Water rights lawyer Michael van Zandt argued that secure water rights have a place in creating a productive society. He asserted that society must pay water rights holders if it wants to take water for endangered species protections. Gray responded that you don’t have a property right to kill endangered fish.
Albeit with an unresolved ending, the day’s discussion ended where it should have begun.