A Water Right for the Environment

by Brian Gray, Leon Szeptycki, and Barton “Buzz” Thompson

Waterways meander throughout farmlands in the Delta. (Photo: CA Dept. of Water Resources, shot 3/24/2008)

California’s management of water for is not working for anyone. Environmental advocates argue that state and federal regulators have set water quality and flow standards that do not adequately protect fish and wildlife, and have not enforced these requirements when they are most needed. Farm and urban interests claim that these regulations have been ineffective and cause unnecessary economic harm. These water users may incur additional cutbacks in their water supplies if regulators conclude that more water is needed to support struggling fish populations, making planning for producers difficult. Amidst this tension, native fish populations in the state have continued to plummet.

This ironic situation—in which both sides believe they bear a disproportionate burden of water shortages and regulatory uncertainty—cries out for reform. We should start by granting the environment a water right, as detailed in a new report we helped write for the Public Policy Institute of California.

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California’s native fish species have long struggled against the cumulative effects of land and water resources development for agricultural, business, and residential purposes. Dams have blocked access to spawning grounds, reservoir operations have altered river flows, land development has degraded essential habitat, and diversions for water supply have severely reduced the volume of water in many California rivers.

Stressors on fishes are especially pronounced when precipitation and runoff are diminished. During the 2012–16 drought, for example, a parasite known as “ich,” which thrives in low water conditions, infected adult Chinook salmon returning to spawn in the Klamath and Trinity Rivers . The State lost two consecutive wild cohorts of endangered winter-run Chinook salmon when waters warmed on the Sacramento River below Shasta Dam. And the populations of several species that inhabit the Sacramento–San Joaquin Delta declined to historically low levels as flows and water quality diminished throughout the estuary.

Although many have tried to address the drought’s challenges creatively and cooperatively, two opposing viewpoints have dominated the political debate. Water users—especially San Joaquin Valley farmers—complain that the water quality and endangered species requirements compounded the severity of the drought and deprived them of valuable water. Signs along Interstate 5 to “Stop the Congress Created Dust Bowl” are manifestations of this resentment.

In contrast, environmental and fishing advocates argue that native fish are in peril because state and federal regulators too often compromise on enforcement of these standards, especially during drought. They point to operational and regulatory decisions that diverted water from Trinity River reservoirs until salmon actually began to die, kept too little water in Lake Shasta to provide cold water releases for juvenile salmon, and loosened Delta salinity standards to facilitate water exports for farms and cities. Their claims are backed up by evidence of plummeting populations of key aquatic species.

* * *

These unfortunate events show that the existing regulatory structure is not working for any party. We recommend that California move away from the long-standing policy of protecting water quality and instream flows by restricting the exercise of water rights, and instead foster a new policy that integrates environmental uses into the water rights system. This reform will increase the efficiency and flexibility of environmental water management and enhance certainty for all water right holders.

The centerpiece of our proposal is the creation of Ecosystem Water Budgets (EWBs) for the state’s principal watersheds. An EWB is a defined quantity of water that would be flexibly allocated to meet ecosystem management objectives. This concept includes several key features:

  • Watershed-based planning. Local water managers, water users, and environmental and fishing groups would draft “watershed ecosystem plans” that would determine the volume of water needed to ensure the ecological integrity of each river system. These plans also would designate priorities for the use of the EWB under varying hydrologic conditions.

For example, during periods of relative water abundance, the EWB could be directed to aquatic habitat improvements (such as refreshing spawning gravels) and floodplain and wetlands enhancement for fish and terrestrial wildlife. During drought, when water supplies are scarce for all uses, the EWB would be devoted to critical ecosystem needs—such as cold-water refugia for salmon or wetlands for waterbirds. Planning for ecosystem needs in dry years would perform the dual function of allowing water users to know drought water availability in advance and prepare accordingly.

As with the existing environmental regulatory standards, the ecosystem water assigned to each EWB would carry the highest priority within each watershed. Because the EWBs would largely implement the environmental regulatory standards, the State Water Resources Control Board would review and approve both the watershed ecosystem plans and the EWBs. This priority would be needed to comply with existing laws, and would also implement a key aspect of California water law:  that “public trust” purposes, such as watershed health, must be incorporated into the water rights system.

  • Functional flows and integrated objectives. The quantity of water assigned to each EWB would be based on a “functional flows” assessment of the most effective flow regime for the ecosystem as a whole. This would stand in marked contrast to the current regulatory approach to environmental protection, which focuses on the needs of individual species by regulating individual stressors such as water diversions and discharges of pollutants.

Integrated ecological planning is more realistic because it recognizes that multiple species are adapted to the same flow regime within a single aquatic ecosystem. It is also more efficient because it minimizes the risk of overlapping, and sometimes conflicting, regulatory water requirements.

  • Independent and flexible administration. An independent trustee for the watershed would administer each EWB. The trustee would manage the ecosystem water as an environmental water right with the same prerogatives as other water right holders. The trustee’s primary responsibility would be to deploy the ecosystem water to fulfill the objectives of the watershed ecosystem plan and annual watering plans that define the specific goals of ecosystem water management in light of current and projected hydrologic conditions and water availability.

As with other water right holders, the trustee should have authority to acquire and lease water. Water leases would be limited to circumstances in which there is excess water within the EWB in light of annual ecosystem goals. The proceeds of these short-term sales could then be used to purchase additional ecosystem water during droughts, to fund habitat improvements, and to acquire land and water rights. Moreover, because storage is an essential feature of efficient water management, the trustee should be able to store water—both in surface reservoirs and in underground aquifers—and to enter into surface and groundwater exchange agreements with other users.

The volumes of water assigned to each EWB would not necessarily be the same as those dedicated to ecological purposes under the current regulatory system. The EWB could be greater in watersheds where the existing regulations have proved inadequate to meet the goals of healthy and sustainable fisheries and ecosystems. But it also could require less water—or change the timing and uses of that water—because the EWB would be based on an integrated determination of the needs of the whole ecosystem, rather than fragmented regulatory assessments of individual species requirements. Moreover, each trustee could deploy this water flexibly in light of current hydrologic conditions to achieve targeted biological and ecological benefits. This approach would enable the trustees to use available ecosystem water more efficiently than is possible under existing law. Combined with other improvements in California water management, including improved water accounting and increased groundwater recharge during wet years, the EWB approach has the potential to stem the loss of aquatic species and allow environmental protections to work in better harmony with irrigation and urban water use.

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There are precedents for this form of environmental water management. Several western states and Australia have developed programs akin to ecosystem water budgets, and California has taken small steps toward this approach. For example, water users, environmentalists, and community groups have negotiated agreements on Putah Creek and the Yuba River that provide integrated ecological planning and flexible administration of water for fish and wildlife.

We expect that parties in other river systems will be interested in following these examples. Indeed, the State Water Resources Control Board has proposed designating blocks of water to support ecological uses in the principal tributaries of the Sacramento and San Joaquin Rivers, although currently without the management flexibilities we recommend. This process could be a catalyst for negotiation of EWBs on one or more of these rivers. The Federal Energy Regulatory Commission’s relicensing of hydroelectric dams on several of California’s other important rivers also may serve as a forum for interested parties to pursue more creative and flexible means of managing environmental water. Moreover, because groundwater storage and conjunctive use are components of our proposal, EWBs also may be useful to the parties who are now negotiating groundwater sustainability plans under the recently enacted Sustainable Groundwater Management Act.

* * *

Although negotiated solutions are often the best means of resolving water resources controversies, the Legislature could facilitate the adoption of EWBs by recognizing instream environmental uses as valid water rights or by authorizing the trustees to administer ecosystem water with the same flexibility as other water rights. Legislation to outline the essential features of watershed-based ecological stewardship also would be useful. These include establishing criteria for the assignment of water to ecosystem uses, describing the management powers and responsibilities of the trustees, and defining the relationships of the EWBs to the existing laws and regulations that govern water quality and fisheries.

These changes would promote efficiency and certainty for all water users. Assigning water to the EWBs based on an integrated functional flows approach would direct the available water to the most valuable ecological services within each watershed. And the quantity of ecosystem water would be fixed, providing assurances to other water users in the watershed. The trustees would have to fulfill their stewardship responsibilities within the assigned budget or acquire additional water from other users. Conversely, the assigned ecosystem water would be off-limits to other water users unless they purchase surplus water from the trustees or acquire it through voluntary exchanges.

California’s aquatic ecosystems are fragile and ill-prepared for future droughts and a warming climate. We have a window of opportunity before the next drought strikes to adopt policies that encourage more creative and effective management of water assigned to essential ecological functions.

Brian Gray is a senior fellow at the Public Policy Institute of California and professor emeritus at UC Hastings. Leon Szeptycki is director of Water in the West and professor of the practice at Stanford University. Barton “Buzz” Thompson is the Robert E. Paradise Professor in Natural Resources Law at Stanford Law School.

Additional Reading:

Jeffrey Mount, Brian Gray, Caitrin Chappelle, Greg Gartrell, Ted Grantham, Peter Moyle, Nathaniel Seavy, Leon Szeptycki, and Barton “Buzz” Thompson, Managing California’s Freshwater Ecosystems: Lessons from the 2012–16 Drought (PPIC 2017).

Jeffrey Mount, Brian Gray, Caitrin Chappelle, Greg Gartrell, Ted Grantham, Peter Moyle, Nathaniel Seavy, Leon Szeptycki, and Barton “Buzz” Thompson, Eight Case Studies of Environmental Management During the 2012–16 Drought (PPIC 2017).

Jeffrey Mount, Brian Gray, Caitrin Chappelle, Jane Doolan, Ted Grantham, and Nat Seavy, Managing Water for the Environment During Drought: Lessons from Victoria, Australia (PPIC 2016).

Leon F. Szeptycki, Julia Forgie, Elizabeth Hook, Kori Lorick, and Philip Womble, Environmental Water Rights Transfers: A Review of State Laws (Stanford 2015).

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10 Responses to A Water Right for the Environment

  1. Jai Rho says:

    “Integrated ecological planning is more realistic because it recognizes that multiple species are adapted to the same flow regime within a single aquatic ecosystem. It is also more efficient because it minimizes the risk of overlapping, and sometimes conflicting, regulatory water requirements.”

    If proposed EWBs are planned and managed locally and independently, ecological planning would be fragmented rather than integrated. Because the ecosystem does not recognize local boundaries, poor planning, mismanagement and abuse in one or more EWBs could wreak havoc on other EWBs.

  2. Joseph Rizzi says:

    EWB new owners of water, bad idea, we have enough conflict and fighting over water now. YES, environment needs to be high in our decision processes, but adding a new owner to buy, sell and trade our water for the environmental good is to god like to put on someone or some group.

    How about pretend you are that EWB for Shasta and identify/contrast how you would change what is happening now and show the hypothetical pros and cons?

    Fish need cold water. Dredging makes streams and rivers deeper and colder. Adding water filled river risers (like AquaDam) 1 to 9 feet inflated in summer and deflated and/or removed in Winter run off can give rivers more depth while adding more to groundwater and cooler water ways. 3rd way is to dig or blast deep ponds alone streams and rivers.

    Let’s work on solutions for environment and people.

  3. jennifer wood says:

    I love this approach. How about calling is something different than Ecosystem Water Budgets? Still a little wonky and a bit politically charged. Maybe need something that producers and the general public can connect with and maybe feel better about? Critter Water Budgets, Watershed Water Budgets, Nature Water Budgets, Fish and Bird Water Budgets? Or something else entirely that speaks to the more flexible nature of this approach. A table or figure that compares the proposed approach to the current approach would be helpful.

  4. Pingback: Blog: A water right for the environment | H2minusO Blog

  5. jaylund says:

    Allowing environmental interests to have flexible assets is needed for ecosystem management to become more effective and able to adapt to changing conditions, given California’s highly variable climate and ongoing climate and other changes. Current ecosystem management provides neither adequate resources for ecosystems nor incentives for responsible institutions to act effectively. Just as urban and agricultural water supplies are more effectively managed by having a portfolio of water supply and demand management assets, ecosystem management probably needs a portfolio of senior and junior water rights, as well as rights to other assets, such as storage, conveyance, and groundwater.

  6. tryg sletteland says:

    This could be a very useful, much needed water management tool. It will be helpful to see illustrations of how it would work and appraisals from water users and water use advocates across the spectrum.

  7. Felix E. Smith says:

    I enjoyed your article.

    In 1980 when I was with the USFWS, I wrote a paper “The Public Trust Doctrine: Instream Flows and Resources.”

    We tried to bring out the need for instream flows to protect instream and associated resources, uses and values. We stated that for planning purposes any allocation of water should be based on a nearly equal sharing of water between instream and out- of stream uses. In a particular stream flows greater than 50 percent of the annual might be required for fish and ecosystem renewability. Some streams might require all the flow during some period of the year, others may need less than 50 percent of the total annual runoff to protect instream values. Rivers like the Tuolumne and Mokelumne used by the City of San Francisco and East Bay MUD respectively would take some of their water from the Delta pool. Flows released from the upstream dams would benefit their respective river ecosystems and the Delta. This public trust water would be “inviolate” dedicated to instream needs. We also suggested a policy of “inviolability”. This instream flow should become a beacon ideology to protect water as an ecological and biological resource.

    Today it is recognized that the Public Trust Doctrine overlays every water right allocation and other water laws such as the Area of Origin statutes, etc. That the State has an affirmative duty – an obligation – to protect trust resources, uses and values and other assets covered by the public trust when ever possible.

    When the USFWS report hit the streets, the Bureau of Reclamation demanded that we pull back or recall the report. We did not do that. The report helped spur on support for a conference on the Public Trust which was later held on the UCD campus under Dr. Dunning. In September of 1980. From that event the Public trust was exposed and in the spring of
    1983 the Audubon decision came down to impact water allocation and protect resources uses and values. I strongly agree that the planning must be sub basin wide not sole project by project. Like the entire American River Basin for the facilities in place owe some of the water needed (to provide environmental conditions) to protect the resources (anadromous fishes) of the lower American River.

  8. Mike Wade says:

    We all participate in creating a healthy California environment. But, the lurking 800 lb. gorilla in the proposed Ecosystem Water Budget is that there really is no budget when you consider that the Endangered Species Act would still be a factor in environmental water management. As laid out, the “budget” can be constantly increased by falling back on the ESA if environmental water managers feel they’re not achieving their ecosystem goals. What’s the incentive to follow a budget if you never really have to stick to it? This is not a good long-term strategy for any California water users – urban, rural, or environmental. And by further reducing surface water supplies it will be exceedingly more difficult to meet the provisions of the Sustainable Water Management Act.

    To maintain balance and parity within California’s water system, Ecosystem Water Budgets should meet the same standards of beneficial use as urban and agricultural water users. It’s important to assure public confidence that an Ecosystem Water Budget will uphold adopted standards of stewardship. There should be certified measurement and science-based actions that achieve efficient management and demonstrate that water designated for a specific purpose is achieving its goal.

    And there is a way to accomplish that. The system in Australia provides for an environmental water rights holder (the government) to manage water purchased from the market with public funds. It is a specific quantity of water limited to the volume stipulated in the water right. When it’s gone its gone. Australian water users don’t have to worry about a safety net that could end up strangling them. Let’s learn from their success for the benefit of all Californians.

  9. Dean Pegal says:

    Very impressive, I appreciate this approach to save work and its quality.

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