Water resource management in California is at a critical juncture as evolving policies and physical limits of the State's water supply infrastructure collide. Three major interest groups--urban, agricultural, and environmental--must work their way through California's institutional framework toward solutions that should benefit all Californians and their environment.
Since 1957, when the first comprehensive California Water Plan was published, attitudes toward and methods for managing the State's natural resources have gone through many changes. Californians have become more environmentally sensitive, as reflected in statutes such as the California Environmental Quality Act, the State Endangered Species Act, and the State Wild and Scenic Rivers Act.
The situation in the Sacramento-San Joaquin Delta is a prime example of an area where concerns about aquatic species compete with urban and agricultural water supply needs. The Delta provides valuable habitat and migration corridors for many species, including the winter-run salmon and Delta smelt, which are listed under the State and federal Endangered Species Acts. The Sacramento split-tail is also being considered for listing under the State and federal acts because of its low populations. Natural resource managers are looking for ways to help these species recover. Biological opinions have been issued under the federal Endangered Species Act; these opinions affect how water supply projects in the Delta are operated. Essentially, the opinions have increased the amount of water allocated to environmental uses in the Delta over SWRCB D-1485, and they affect when water projects in the Delta can pump or convey the supplies that eventually serve about two-thirds of California's population and much of its farmland. California's population will require even more water as it grows by nearly 60 percent by the year 2020, making it clear to resource managers that something must be done to address water supply reliability for urban, agricultural, and environmental needs in the Delta.
In California, water use and supplies are controlled and managed under an intricate system of federal and State laws. Common law principles, constitutional provisions, State and federal statutes, court decisions, and contracts or agreements all govern how water is allocated, developed, or used. All of these components, along with the responsible State, federal, and local agencies, compose the institutional framework for allocation and management of water resources in California.
This chapter presents an overview of California's institutional framework for managing water resources in California. It highlights some of the changes that have occurred over the last decade, as new statutes have been enacted and earlier laws, decisions, and agreements reinterpreted. Summarized here are major constitutional requirements, statutes, court decisions, and agreements that form the groundwork for many water resource management and planning activities. (General references and citations to the laws and cases discussed are contained in Appendix A.)
The following subsections condense the basic water rights laws and doctrines governing allocation and use of California's water supplies.
The keystone to California's water law and policy, Article X, Section 2 of the California Constitution, requires that all uses of the State's water be both reasonable and beneficial. It places a significant limitation on water rights by prohibiting the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water.
California operates under a dual system of water rights for surface water which recognizes both the doctrine of riparian rights and appropriative rights. Under the riparian doctrine, the owner of land has the right to divert but not store a portion of the natural flow of water flowing by his land for reasonable and beneficial use upon his land adjacent to the stream and within its watershed, subject to certain limitations. Generally, all riparian water right holders must reduce their water use in times of water shortages. Under the prior appropriation doctrine, a person has a right to divert, store, and use water regardless of whether the land on which it is used is adjacent to a stream or within its watershed, provided that the water is used for reasonable and beneficial uses and is surplus to water from the same stream used by earlier appropriators. The rule of priority between appropriators is "first in time is first in right."
The Water Commission Act, which took effect in 1914 following a referendum, recognized the overriding interest of the people in the waters of the state but provided that private rights to use the water may be acquired in the manner provided by law. The act established a system of state-issued permits and licenses to appropriate water. Amended over the years, it now appears in Division 2 (Commencing with Section 1000) of the Water Code. These provisions place responsibility for administering appropriative water rights with the State Water Resources Control Board; however, the permit and license provisions do not apply to pre-1914 appropriative rights (those initiated before the act took effect in 1914). The act also provides procedures for adjudication of water rights, including court references to the State Water Resources Control Board and statutory adjudications of all rights to a stream system.
Generally, ground water is available to any person who owns land overlying the ground water basin. Ground water management in California is accomplished either by a judicial adjudication of the respective rights of overlying users and exporters, or by local management of rights to extract and use ground water as authorized by statute or agreement. Most of the larger ground water basins in Southern California and the San Francisco Bay area are managed either pursuant to a court adjudication or by an agency with statutory powers; however, most basins in Northern California are not so managed. Statutory management may be either by powers granted to a public agency that also manages surface water, or by a ground water management agency created expressly for that purpose.
In 1992, the Legislature repealed the water code sections that authorized management in specific critically overdrafted basins and adopted new sections to authorize any local agency which provides water service to adopt a ground water management plan if the ground water is not subject to management under other provisions of law or a court decree. Specific notice and hearing procedures must be followed. If protesting landowners represent more than 50 percent of the assessed valuation of land within the local agency, the ground water management plan may not be adopted. Elements of a plan may include control of saline water intrusion, identification and protection of well head and recharge areas, regulation of the migration of contaminated water, provisions for abandonment and destruction of wells, mitigation of overdraft, replenishment, monitoring, facilitating conjunctive use, identification of well construction policies, and construction of cleanup, recharge, recycling, and extraction projects by the local agency.
In the 1980s, the Public Trust Doctrine was used by courts to limit traditional water rights. Under the Equal Footing Doctrine of the U.S. Constitution, each state has title to tidelands and the beds of navigable lakes and streams within its borders. The Public Trust Doctrine--recognized in some form by most states--embodies the principle that the state holds title to such properties within the state in trust for the beneficial use of the public and that public rights of access to and use of tidelands and navigable waters are inalienable. Traditional public trust rights include navigation, commerce, and fishing. California law has expanded the traditional public trust uses to include protection of fish and wildlife, preserving trust lands in their natural condition for scientific study and scenic enjoyment, and related open-space uses.
In 1983, the California Supreme Court extended the public trust doctrine's limitation on private rights to appropriative water rights. In National Audubon Society v. Superior Court of Alpine County, the court held that water right licenses held by the City of Los Angeles to divert water from streams tributary to Mono Lake remain subject to ongoing State supervision under the public trust doctrine. The court held that public trust uses must be considered and balanced when rights to divert water away from navigable water bodies are considered. The court also held that California's appropriative rights system and the public trust doctrine embody important precepts which "...make the law more responsive to the diverse needs and interests involved in planning and allocation of water resources." Consequently, in issuing or reconsidering any rights to appropriate and divert water, the State must balance public trust needs with the needs for other beneficial uses of water.
Since the 1983 National Audubon decision, the public trust doctrine has been involved in several other cases. In United States v. State Water Resources Control Board (commonly referred to as the Racanelli Decision and discussed later in this chapter), the State Court of Appeal reiterated that the public trust doctrine is a significant limitation on water rights. The public trust doctrine was also a basis for the decision in Environmental Defense Fund v. East Bay Municipal Utility District. In this case, EDF claimed that EBMUD should not contract with the U.S. Bureau of Reclamation for water diverted from the American River upstream of where it flowed through the Sacramento urban area in a manner that would harm instream uses including recreational, scenic, and fish and wildlife preservation purposes. The Superior Court upheld the validity of EBMUD's contract with USBR but placed limitations on the timing and amounts of deliveries to EBMUD. As a result of these cases, the SWRCB now routinely implements the public trust doctrine through regulations and through appropriate terms and conditions in water rights permits and licenses.
The public trust decisions reflect changes in our attitudes about using water resources. The earliest cases involved rights of public access to tidelands around San Francisco Bay and San Pablo Bay. Later cases involved public trust rights to inland water bodies such as Clear Lake and Lake Tahoe. Modification of water rights is the most recent application of this doctrine.
The Federal Power Act has, at times, conflicted with the administration of State water rights involving hydroelectric projects. The act creates a federal licensing system administered by the Federal Energy Regulatory Commission and requires that a license be obtained for nonfederal hydroelectric projects proposing to use navigable waters or federal lands. The act contains a clause modeled after a clause in the Reclamation Act of 1902, which disclaims any intent to affect state water rights law.
In a number of decisions dating back to the 1940s, the U.S. Supreme Court held that provisions of the Reclamation Act and the Federal Power Act preempted inconsistent provisions of state law. Decisions under both acts found that these clauses were merely "saving clauses" which required the United States to follow minimal state procedural laws or to pay just compensation where vested non-federal water rights are taken. However, in California v. United States, the U.S. Supreme Court overturned a number of earlier Supreme Court decisions which found that the Reclamation Act substantially preempts state water law. It held that the Reclamation Act clause requires the Bureau of Reclamation to comply with conditions in state water rights permits unless those conditions conflict with "clear Congressional directives."
In California v. FERC (1990), commonly referred to as the Rock Creek Decision, the U.S. Supreme Court rejected California's argument that the Federal Power Act clause required deference to state water law, as the Reclamation Act's did. The court pointed out that the Federal Power Act had been construed in a number of cases to preempt inconsistent state law, beginning with First Iowa Hydroelectric Cooperative v. Federal Power Commission (1946)
First Iowa involved a state law which required that water be returned to a river at the first available point below the dam in order to receive a state permit. The project licensed by the FPC did not do this. The Supreme Court held that the Federal Power Act's reference to state law was merely a "savings clause" intended only to require compensation if vested property rights are taken. In all other respects, the Federal Power Act could supersede inconsistent state laws. The Court noted that Iowa law sought to regulate ". . .the very requirements of the project which the Congress has placed in the discretion of the Federal Power Commission."
Thus, in California v. FERC, the court declined to interpret the Federal Power Act in the same manner as the Reclamation Act. It distinguished between the two acts, finding that the Federal Power Act envisioned a broader and more active federal oversight role than did the Reclamation law.
The Federal District Court case of Sayles Hydro Association v. Maughan (February 1993), reinforced this view by holding that federal law has "occupied the field," preventing any state regulation of federally licensed power projects other than determining proprietary water rights. In Sayles, the SWRCB refused to issue a permit to the proponents of a hydro project until they had completed numerous environmental reports and studies. The proponents sought and received a declaratory judgment that no more environmental reports were necessary because the Board did not have the authority to impose environmental conditions in the permit beyond what was required in the already-issued FERC license.
Preemption of state law by terms and conditions in Federal Power Act licenses is likely to remain a significant problem for water management in the western states. There have been instances where holders of Federal Power Act licenses have claimed preemption from state safety of dams requirements, minimum stream flow requirements, and state designation of wild and scenic streams.
During the years when California's two largest water projects, the Central Valley Project and State Water Project, were being developed, area of origin legislation was enacted to protect local Northern California supplies from being depleted as a result of the projects. County of origin statutes provide for the reservation of water supplies for counties in which the water originates when, in the judgment of the State Water Resources Control Board, an application for the assignment or release from priority of State water right filings will deprive the county of water necessary for its present and future development. Watershed protection statutes are provisions which require that the construction and operation of elements of the Federal Central Valley Project and the State Water Project not deprive the watershed, or area where water originates, or immediately adjacent areas which can be conveniently supplied with water, of the prior right to water reasonably required to supply the present or future beneficial needs of the watershed area or any of its inhabitants or property owners.
The Delta Protection Act, enacted in 1959 (not to be confused with the Delta Protection Act of 1992, which relates to land use), declares that the maintenance of an adequate water supply in the Delta--to maintain and expand agriculture, industry, urban, and recreational development in the Delta area and provide a common source of fresh water for export to areas of water deficiency--is necessary for the peace, health, safety, and welfare of the people of the State, subject to the County of Origin and Watershed Protection laws. The act requires the State Water Project and the federal CVP to provide an adequate water supply for water users in the Delta through salinity control or through substitute supplies in lieu of salinity control.
In 1984, additional area of origin protections were enacted covering the Sacramento, Mokelumne, Calaveras, and San Joaquin rivers; the combined Truckee, Carson, and Walker rivers; and Mono Lake. The protections prohibit the export of ground water from the combined Sacramento River and Sacramento-San Joaquin Delta basins, unless the export is in compliance with local ground water plans. Also, Water Code Section 1245 holds municipalities liable for economic damages resulting from their diversion of water from a watershed.
California's developed water supplies have become less reliable and more costly for urban and agricultural users as State and federal regulations to protect the public and its environment have increased. Environmental actions and regulations to protect both water quality and fish and wildlife have had far reaching effects on water use and management and involve several regulatory agencies. A few important examples are:
Regulatory actions, in combination with costs of compliance, have brought California's water development close to a standstill for nearly 15 years. During this time, water resource managers have implemented a number of strategies to help Californians become more efficient in their water use, thus stretching existing supplies. But California's increased demand for water to meet the needs of a growing population and to protect the environment all point to the necessity of addressing the problems and moving forward with cost effective and environmentally sound water supply development combined with more efficient water management.
Many of the current issues regarding the storage, allocation, distribution, and use of water in California involve environmental concerns. Environmental laws are inextricably intertwined in all of the State's major water supply programs, and environmental concerns play a major role in water policy and planning. Following is a summary of the major environmental laws influencing water supply facility planning, construction, and operation.
Endangered Species Act. Under the federal ESA, an endangered species is one that is in danger of extinction in all or a significant part of its range, and a threatened species is one that is likely to become endangered in the near future. The ESA is designed to preserve endangered and threatened species by protecting individuals of the species and their habitat and by implementing measures that promote their recovery.
The ESA sets forth a procedure for listing species as threatened or endangered. Final listing decisions are made by the United States Fish and Wildlife Service or the National Marine Fisheries Service. Presently over 650 species have been listed in the United States, of which 110 are native to California-the largest number in any state.
Once a species is listed, Section 7 of the act requires that federal agencies, in consultation with the U.S. Fish and Wildlife Service or National Marine Fisheries Service, ensure that their actions do not jeopardize the continued existence of the species or habitat critical for the survival of that species. The federal wildlife agencies are required to provide an opinion as to whether the federal action would jeopardize the species. The opinion must include reasonable and prudent alternatives to the action that would avoid jeopardizing the species' existence. Federal actions subject to Section 7 include issuance of federal permits such as the dredge and fill permit required under Section 404 of the federal Clean Water Act, which requires that the project proponent demonstrate that there is no feasible alternative consistent with the project goals that would not affect listed species. Mitigation of the proposed project is not considered until this hurdle is passed.
State agencies and private parties are also subject to the ESA. Section 9 of the ESA prohibits the "take" of endangered species and threatened species for which protective regulations have been adopted. Take has been broadly defined to include actions that harm or harass listed species or that cause a significant loss of their habitat. State agencies and private parties are generally required to obtain a permit from the USFWS or NMFS under Section 10(a) of the ESA before carrying out activities that may incidentally result in the take of listed species. The permit normally contains conditions to avoid take of listed species and to compensate for habitat adversely impacted by the activities.
The ESA has been interpreted to apply not just to new projects, but also to ongoing project operation and maintenance. For example, maintenance activities along the California Aqueduct right-of-way may impact the San Joaquin kit fox, the blunt-nose leopard lizard, and the Tipton kangaroo rat, all species that have been listed as endangered. DWR initiated the Section 10(a) process to obtain a permit for the incidental take of species resulting from maintenance activities along the California Aqueduct despite measures DWR takes to reduce or eliminate take. Another example is federal, State, and local operations in the Delta and upstream Sacramento River that are affected by biological opinions to protect the winter-run salmon and the Delta smelt.
California Endangered Species Act. The California Endangered Species Act is similar to the federal ESA and must be complied with in addition to the federal ESA. Listing decisions are made by the California Fish and Game Commission.
All state lead agencies are required to consult with the Department of Fish and Game about projects that impact State listed species. DFG is required to render an opinion as to whether the proposed project jeopardizes a listed species and to offer alternatives to avoid jeopardy. State agencies must adopt reasonable alternatives unless there are overriding social or economic conditions that make such alternatives infeasible.
Many California species are both federally listed and State listed. CESA directs DFG to coordinate with the USFWS and NMFS in the consultation process so that consistent and compatible opinions or findings can be adopted by both federal and State agencies.
Natural Community Conservation Planning. Adopted in 1991, California's Natural Community Conservation Planning Act establishes a program to identify the habitat needs of species before they become listed as threatened or endangered, and to develop appropriate voluntary conservation methods compatible with development and growth. This program is designed to preserve habitat for the variety of species that are dependent upon each other. Participants in the program develop plans to protect certain habitat and will ultimately enter into agreements with DFG to ensure that the plans will be carried out. Plans must be created so that they are consistent with endangered species laws. A pilot program has been established in Riverside, Orange, and San Bernardino counties for the Coastal Sage Scrub, which exists in a habitat that has been diminishing. A number of endangered species, including the gnatcatcher, depend on this habitat. The Secretary of the U.S. Department of the Interior has endorsed this process, which may evolve into the approach of the future. Participation in these plans is not mandatory.
The Natural Conservation Planning Act is likely to play an important role in water development in the future. Water suppliers may participate in plans for habitat impacted directly by new water projects and indirectly in the areas that receive water supplies.
Dredge and Fill Permits. Section 404 of the federal Clean Water Act regulates the discharge of dredged and fill materials into waters of the United States, including wetlands. The term "discharge of dredged and fill material" has been defined broadly to include the building of any structure involving rock, sand, dirt, or other construction material. No discharge may occur unless a permit is obtained from the U.S. Army Corps of Engineers. Generally, the project proponent must agree to mitigate or have plans to mitigate environmental impacts caused by the project before a permit is issued. The U.S. Environmental Protection Agency has the authority to veto permits issued by the Corps for projects that have unacceptable adverse effects on municipal water supplies, fisheries, wildlife, or recreational areas.
Section 404 permits the issuance of a general permit on a State, regional, or nationwide basis for certain categories of activities that will cause only minimal environmental effects. Such activities are permitted without the need of an individual permit application. Installation of a stream gauging station along a river levee is one example of an activity which falls within a nationwide permit.
The Corps also administers a permitting program under Section 10 of the 1899 Rivers and Harbors Act. Section 10 generally requires a permit for obstructions to navigable water. The scope of the permit under Section 10 is narrower than under Section 404 since the term "navigable waters" is more limited than "waters of the United States."
The majority of water development projects must comply with Section 404, Section 10, or both. For example, proposed facilities such as Los Banos Grandes and Phase II of the Coastal Branch for the SWP and Los Vaqueros for the Contra Costa Water District, as well as activities within Delta channels, are subject to 404 jurisdiction and regulation.
Public Interest Terms and Conditions. The Water Code authorizes the SWRCB to impose public interest terms and conditions to conserve the public interest, specifically the consideration of instream beneficial uses, when it issues permits to appropriate water. It also considers environmental impacts of approving water transfers under its jurisdiction. Frequently, it reserves jurisdiction to consider new instream uses and to modify permits accordingly. D-1485 fish and wildlife conditions that regulate CVP and SWP Delta operations were imposed under a reservation of SWRCB's jurisdiction.
Releases of Water for Fish. Fish and Game Code Section 5937 provides protection to fisheries by requiring that the owner of any dam allow sufficient water at all times to pass through the dam to keep in good condition any fisheries that may be planted or exist below the dam. In California Trout, Inc. v. the State Water Resources Control Board (1989), the court determined that Fish and Game Code sections 5937 and 5946 require the SWRCB to modify the permits and licenses issued to the City of Los Angeles to appropriate water from the streams feeding Mono Lake to ensure sufficient water flows for fisheries purposes. In a subsequent case, the court of appeal ordered the Superior Court to set interim flow standards for the four streams feeding Mono Lake and from which the City diverts. The Alpine County Superior Court entered a preliminary injunction prohibiting Los Angeles from diverting water whenever the Mono Lake level falls below 6,377 feet.
Streambed Alteration Agreements. Fish and Game Code Sections 1601 and 1603 require that any governmental entity or private party altering a river, stream, or lake bed, bottom or channel enter into an agreement with the Department of Fish and Game. Where the project may substantially impact an existing fish or wildlife resource, DFG may require that the agreement include provisions designed to protect riparian habitat, fisheries, and wildlife. New water development projects and on-going maintenance activities are often subject to these sections.
Migratory Bird Treaty Act. This act implements various treaties for the protection of migratory birds and prohibits the "taking" (broadly defined) of birds protected by those treaties without a permit. The Secretary of the Interior is directed to determine conditions under which a taking may occur, and criminal penalties are provided for unlawful taking or transportation of birds. Liability imposed by this act was one of several factors leading to the decision to close the Kesterson Wildlife Refuge. (See the discussion of the San Joaquin Valley Drainage Program under Management Programs in this chapter.)
Another set of environmental statutes compels governmental agencies and private individuals to document and consider environmental consequences of their actions. They define the procedures through which governmental agencies consider environmental factors in their decision-making process.
National Environmental Policy Act. NEPA directs federal agencies to prepare an environmental impact statement for all major federal actions which may have a significant effect on the human environment. It states that it is the goal of the federal government to use all practicable means, consistent with other considerations of national policy, to protect and enhance the quality of the environment. It is a procedural law requiring all federal agencies to consider the environmental impacts of their proposed actions during the planning and decision-making processes. The content of an EIS is very similar to that required by the California Environmental Quality Act for a State environmental impact report.
California Environmental Quality Act. CEQA, modeled after NEPA, requires California public agency decision makers to document and consider the environmental impacts of their actions. It requires an agency to identify ways to avoid or reduce environmental damage and to implement those measures where feasible. It also serves as a means to encourage public participation in the decision-making process. CEQA applies to all levels of California government, including the State, counties, cities, and local districts.
CEQA requires that a public agency carrying out a project with significant environmental effects prepare an environmental impact report. An EIR contains a description of the project; a discussion of the project's environmental impacts, mitigation measures, and alternatives; public comments; and the agency's responses to the comments. In other instances, a notice of exemption from the application of CEQA may also be appropriate.
NEPA does not generally require federal agencies to adopt mitigation measures or alternatives provided in the EIS. CEQA, on the other hand, does impose substantive duties on all California governmental agencies approving projects with significant environmental impacts to adopt feasible alternatives or mitigation measures that substantially lessen these impacts, unless there are overriding reasons why they cannot. When a project is subject to both CEQA and NEPA, both laws encourage the agencies to cooperate in planning the project and to prepare joint environmental documents.
Fish and Wildlife Coordination Act. The Fish and Wildlife Coordination Act and related acts express the policy of Congress to protect the quality of the aquatic environment as it affects the conservation, improvement, and enjoyment of fish and wildlife resources. Under this act, any federal agency that proposes to control or modify any body of water, or to issue a permit allowing control or modification of a body of water, must first consult with the U.S. Fish and Wildlife Service and State Fish and Game officials. This requires coordination early in the project planning and environmental review processes.
Water use and management are also limited by several statutes designed to set aside resources or areas to preserve their natural conditions. This precludes certain activities, including most water development projects, within the areas set aside.
Federal Wild and Scenic Rivers System. In 1968, Congress passed the National Wild and Scenic Rivers Act to preserve in their free-flowing condition rivers which possess "outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values." The act also states: " . . . that the established national policy of dam and other construction at appropriate sections of rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes."
The act prohibits federal agencies from constructing, authorizing, or funding the construction of water resources projects having a direct and adverse effect on the values for which the river was designated. This restriction also applies to rivers designated for potential addition to the National Wild and Scenic Rivers System. California rivers included in the system include portions of the Middle Fork Feather, North Fork American, Tuolumne, Merced, Kings, North Fork Kern, South Fork Kern, Smith, Sisquoc, and Big Sur Rivers, and Sespe Creek (Figure 2-1). Also included in the system are most rivers protected under the State Wild and Scenic Rivers Act; these rivers were included in the national system upon California's petition on January 19, 1981. The West Walker and East Fork Carson rivers are not included in the federal system.
California Wild and Scenic Rivers System. In 1972, the California legislature passed the State Wild and Scenic Rivers Act, declaring that specified rivers possess extraordinary scenic, recreational, fishery, or wildlife values that should be preserved in a free-flowing state for the benefit of the people of California. It declared that such use of the rivers would be the highest and most beneficial use within the meaning of Article X, Section 2 of the California Constitution. The act prohibits construction of any dam, reservoir, diversion, or other water impoundment on a designated river. Diversions needed to supply domestic water to residents of counties through which the river flows may be authorized, if the Secretary of the Resources Agency determines that the diversion will not adversely affect the river's free-flowing character. The State system includes portions of the Klamath, Scott, Salmon, Trinity, Smith, Eel, Van Duzen, American, West Walker, and East Fork Carson rivers. While not technically a part of the system, similar protection also extends to portions of the McCloud River.
The major difference between the national and State acts is that if a river is designated wild and scenic under the State act, the Federal Energy Regulatory Commission can still issue a license to build a dam on that river, thus overriding the state system. (See Federal Power Act discussion above.) This difference explains why national wild and scenic designation often is sought.
Wild Trout Streams. The California Fish and Game Code designates certain sections of streams and rivers as "wild trout waters." The Trout and Steelhead Conservation and Management Planning Act of 1979 directs the Department of Fish and Game to inventory all California trout streams and lakes and determine whether each should be managed as a wild trout fishery or involve the planting of trout. The objective of the legislation is to establish and maintain wild trout stocks in suitable waters of the State and establish angling regulations designed to maintain the wild trout fishery by natural reproduction. The legislature further directed that part of the wild trout program be devoted to developing catch and release fisheries. The Fish and Game Commission has designated 26 streams as "wild trout waters," and adopted a policy pursuant to Fish and Game Code Section 703 that "[a]ll necessary actions, consistent with state law, shall be taken to prevent adverse impact by land or water development projects on designated wild trout waters."
National Wilderness Act. The Wilderness Act sets up a system to protect federal land designated by Congress as a "wilderness area" and preserve it in its natural condition. Wilderness is defined as undeveloped federal land retaining its primeval character and influence without permanent improvements or human habitation. Commercial enterprise, permanent roads, motor vehicles, aircraft landings, motorized equipment, or construction of structures or installations are prohibited within designated wilderness areas.
Another important consideration in water resource management is water quality. The State Water Resources Control Board plays a central role in both determining water rights and regulating water quality. Discussed below are key State and federal laws governing water quality.
This act is California's comprehensive water quality control law and is a complete regulatory program designed to protect water quality and beneficial uses of the State's water. The act requires the adoption of water quality control plans by the state's nine Regional Water Quality Control Boards for areas within their regions. These plans are subject to the approval of the State Water Resources Control Board, and ultimately the federal EPA. The plans are to be continually reviewed and updated.
The primary method of implementing the plans is to require each discharger of waste that could impact the waters of the State to meet formal waste discharge requirements. Anyone discharging waste or proposing to discharge waste into the State's water must file a "report of waste discharge" with the Regional Water Quality Control Board within whose jurisdiction the discharge lies. Dischargers are subject to a wide variety of administrative, civil, and criminal actions for failing to file a report. After the report is filed, the regional board may issue waste discharge requirements that set conditions on the discharge. The waste discharge requirements must be consistent with the water quality control plan for the body of water and protect the beneficial uses of the receiving waters. The regional boards also implement Section 402 of the federal Clean Water Act, which allows the State to issue a single discharge permit for the purposes of both State and federal law.
Section 402 of the Clean Water Act established a permit system known as the National Pollutant Discharge Elimination System to regulate point sources of discharges in navigable waters of the United States. The EPA was given the authority to implement the NPDES, although the act also authorizes states to implement the act in lieu of the EPA, provided the state has sufficient authority.
In 1972, the California Legislature passed a law amending the Porter-Cologne Act which gave California the authority and ability to operate the NPDES permits program. Before a permit may be issued, Section 401 of the Clean Water Act requires that the Regional Water Quality Control Board certify that the discharge will comply with applicable water quality standards. After making the certification, the regional board may issue the permit satisfying both State and federal law. The State Water Resources Control Board is currently reviewing the activities subject to nationwide permits to determine if they qualify for water quality certification.
In 1987, Section 402 was amended to require the regulation of storm water runoff under the NPDES, despite the fact that it comes from a large variety of sources which the EPA in the past claimed were too diffuse to be controlled. The EPA and the State Board have adopted some regulations and general permits for certain categories of storm water discharges, but regulations covering all sources have not yet been approved.
The Federal Safe Drinking Water Act, enacted in 1974 and significantly amended in 1986, directed the Environmental Protection Agency to set national standards for drinking water quality. It required the EPA to set maximum contaminant levels for a wide variety of contaminants by establishing maximum allowable concentrations in drinking water supplies. The local water suppliers were given the responsibility to monitor their public water supplies to assure that MCLs were not exceeded and report to the consumers if they were.
The 1986 amendments set a time table for the EPA to establish standards for specific contaminants and increased the range of contaminants local water suppliers were required to monitor to include contaminants that did not yet have an MCL established. They also strengthened enforcement authority, required filtration and disinfection of surface supplies not adequately protected, banned future use of lead pipe and lead solder, and required the EPA to evaluate monitoring methods for deep-well injection waste-disposal sites. They included a wellhead protection program, a grant program for designating sole-source aquifers for special protection, and grant programs and technical and financial assistance to small systems and states.
In 1976, California enacted its own Safe Drinking Water Act requiring the State Department of Health Services to administer laws relating to drinking water regulation, including: setting and enforcing both federal and State drinking water standards, administering water quality testing programs, and administering permits for public water system operations. The federal Safe Drinking Water Act permits the State to enforce its own standards in lieu of the federal standards so long as they are at least as protective as the federal standards. Significant amendments to the State's act in 1989 incorporated the new federal safe drinking water act requirements into California law, gave DHS discretion to set more stringent MCLs, and recommended public health levels for contaminants. DHS was authorized to take the technical and economic feasibility of reducing contaminants into account in setting MCLs. The standards established by DHS are found in the California Code of Regulations, Title 22.
California voters have also passed a series of bond laws to finance grants and low-interest loans to local water suppliers to bring domestic water systems up to drinking water standards. These grant and loan programs are jointly administered by DWR and DHS Office of Public Drinking Water.
Any discussion of California water policy in the 1990s must include a discussion of issues involved in the Delta because almost all developing areas of law, as well as the CVP and SWP operations, are inextricably intertwined in this complex set of issues. A discussion of Delta issues can provide an interesting example of how a great deal of the institutional framework already discussed in this chapter interrelates. Delta issues include water quality, threatened and endangered species such as winter-run salmon and Delta smelt, water rights, the public trust doctrine, and operation of California's two major water projects.
The California Central Valley Project Act was approved by the voters in a referendum in 1933, which authorized construction of the Central Valley Project. The State was unable to construct the project at that time because of the Great Depression; portions of the CVP were subsequently authorized and constructed by the United States. Other portions of it were constructed by the State after the Depression as part of the State Water Project, as authorized in 1960 under the Burns-Porter Act. Principal facilities of the State Water Project include Oroville Dam, Delta Facilities, the California Aqueduct, and North and South Bay Aqueducts. Principal facilities of the federal CVP include Shasta, Trinity, Folsom, Friant, Clair Engle, Whiskeytown, and New Melones dams, Delta facilities, and the Delta Mendota Canal. Joint SWP/CVP facilities include San Luis Reservoir and Canal and various Delta facilities. Specific laws authorizing construction of elements of both the State and federal projects are listed in Appendix A.
The SWRCB issued the first water rights permits to the USBR for operation of the CVP in 1958, and to DWR for operation of the SWP in 1967. Key features of these water rights permits were the ability to divert water from the Delta and send it west to the San Francisco Bay area and south to San Joaquin Valley farms and Southern California urban areas. In these and all succeeding permits issued for the CVP and SWP, the SWRCB reserved jurisdiction to formulate or revise terms and conditions relative to salinity control, effect on vested rights, and fish and wildlife protection in the Sacramento-San Joaquin Delta. The Board has a dual role of both issuing water rights permits and regulating water quality.
On April 29, 1976, the Board initiated proceedings leading to the adoption of Water Right Decision 1485 in 1978. Decision 1485 set forth conditions--including water quality standards, export limitations, and minimum flow rates--for SWP and CVP operations in the Delta and superseded all previous water rights decisions for the SWP and CVP operations in the Delta. Among beneficial uses to be protected by the decision were (1) municipal and industrial water supply, (2) agriculture, and (3) fish and wildlife. Decision 1485 established flow and water quality standards to protect these beneficial uses.
In formulating Decision 1485, the SWRCB asserted that Delta water quality should be at least as good as it would have been if the SWP and CVP had not been constructed. In other words, both the SWP and the CVP were to be operated to meet "without project" conditions. Decision 1485 standards included different levels of protection to reflect variations in hydrologic conditions during different types of water years.
To help implement these water quality standards, Decision 1485 also mandated an extensive monitoring program. It also called for special studies to provide critical data about major concerns in the Delta and Suisun Marsh for which information was insufficient. Decision 1485 included water quality standards for Suisun Marsh, as well as for the Delta, requiring DWR and the USBR to develop a plan for the marsh that would ensure meeting long-term standards for full protection by October 1984, later extended to October 1988.
Recognizing that the complexities of project operations and water quality conditions would change over time, the SWRCB also specified that the Delta water right hearings would be reopened within ten years of the date of adoption of Decision 1485, depending upon changing conditions in the Bay-Delta region and the availability of new evidence on beneficial uses of water.
Lawsuits by various interests challenged Decision 1485, and the decision was overturned by the trial court in 1984. Unlike its predecessor, D-1379, whose standards had been judicially stayed, D-1485 remained in effect. In 1986, the appellate court in the Racanelli Decision (named after Judge Racanelli who wrote the opinion) broadly interpreted the SWRCB's authority and obligation to establish water quality objectives and its authority to set water rights permit terms and conditions that provide reasonable protection of beneficial uses of Delta water and of San Francisco Bay. The court stated that SWRCB needed to separate its water quality planning and water rights functions. SWRCB needs to maintain a "global perspective" in identifying beneficial uses to be protected (not limited to water rights) and in allocating responsibility for implementing water quality objectives (not just to the SWP and CVP, nor only through the Board's own water rights processes). The court recognized the SWRCB's authority to look to all water rights holders to implement water quality standards and advised the Board to consider the effects of all Delta and upstream water users in setting and implementing water quality standards in the Delta, as well as those of the SWP and the CVP.
Later in 1986, DWR and the USBR signed the landmark Coordinated Operation Agreement obligating the CVP and the SWP to coordinate their operations to meet Decision 1485 standards, in order to address overlapping concerns and interests in the Sacramento-San Joaquin Delta. The agreement authorizes the Secretary of the Interior to operate the CVP in conjunction with the SWP to meet State water quality standards for the San Francisco Bay and the Delta (unless the Secretary determines such operation to be inconsistent with Congressional directives), and provides a formula for sharing the obligation to provide water to meet water quality standards and other in-basin uses. It sets forth the basis upon which the CVP and the SWP will be operated to ensure that each project receives an equitable share of the Central Valley's available water and guarantees that the two systems will operate more efficiently during periods of drought than they would were they operated independently of one another. Under the COA, the USBR also agreed to meet future water quality standards established by the SWRCB unless the Secretary of the Interior determines that the standards are inconsistent with Congressional intent.
Hearings to adopt a water quality control plan and water rights decision for the Bay-Delta estuary began in July 1987. Their purpose was to develop a San Francisco Bay/Sacramento-San Joaquin Delta water quality control plan and to consider public interest issues related to Delta water rights, including implementation of water quality objectives. During the first phase of the proceedings, State and federal agencies, including DWR, public interest groups, and agricultural and urban water purveyors provided many expert witnesses to testify on a variety of issues pertaining to the reasonable and beneficial uses of the estuary's water. This phase took place over six months, and generated volumes of transcripts and exhibits.
The SWRCB released a draft Water Quality Control Plan for Salinity and Pollutant Policy Document in November 1988. However, the draft water quality control plan, a significant departure from the 1978 plan, generated considerable controversy throughout the State. The Pollutant Policy Document was subsequently adopted in June 1990.
In January 1989, the SWRCB decided to significantly amend the draft plan and redesign the hearing process. The water quality phase was to continue, an additional scoping phase would follow, and issues related to flow were to be addressed in the final water rights phase. Concurrently, DWR and other agencies offered to hold a series of workshops to address the technical concerns raised by the draft plan. These workshops were open to the public and benefited all parties involved by facilitating a thorough discussion of technical issues. After many workshops and revisions to the water quality control plan, the SWRCB adopted a final plan in May 1991. The federal EPA rejected this plan in September 1991.
With the adoption of the Water Quality Control Plan, the SWRCB began the EIR scoping phase and held several workshops during 1991 to receive testimony regarding planning activities, facilities development, negotiated settlements, and flow objectives. The goal was to adopt an EIR and a water right decision by the end of 1992.
In response to the Governor's April 1992 water policy statement, SWRCB decided to proceed with a process to establish interim Bay-Delta standards to provide immediate protection for fish and wildlife. Water right hearings were conducted from July through August 1992, and draft interim standards (proposed Water Right Decision 1630) were released for public review in December 1992. Concurrently, under the broad authority of the Endangered Species Act, the federal regulatory process was proceeding toward development of Delta standards and upstream measures applicable to the CVP and SWP for the protection of the threatened winter-run chinook salmon. In February 1993, the National Marine Fisheries Service issued a long-term biological opinion governing operations of the CVP and SWP with Delta environmental regulations that in certain months were more restrictive than SWRCB's proposed measures. On March 1, 1993, the U.S. Fish and Wildlife Service officially listed the Delta smelt as a threatened species and shortly thereafter indicated that further restrictions of CVP and SWP operations would be required.
In April 1993, the Governor asked the SWRCB to withdraw its proposed Decision 1630 and instead, to focus efforts on establishing permanent standards for protection of the Delta since recent federal actions had effectively pre-empted State interim standards and provided interim protection for the Bay-Delta environment. On December 15, 1993, EPA announced its proposed standards for the estuary in place of SWRCB water quality standards EPA had rejected in 1991; USFWS proposed to list the Sacramento splittail as a threatened species; and NMFS announced its decision to change the status of winter-run salmon from threatened to endangered.
In April 1994, the SWRCB began a series of workshops to review Delta protection standards adopted in its 1991 Water Quality Control Plan for Salinity and to examine proposed federal EPA standards issued in December 1993. These processes seek to involve both SWRCB and EPA and are intended to establish a mutually acceptable draft SWRCB Delta regulatory plan scheduled for release in December 1994. The plan will be developed in accordance with the Triennial Review requirements of the Clean Water Act.
The California Water Policy Council, created to coordinate activities related to the State's long-term water policy, and the Federal Ecosystem Directorate (sometimes referred to as "Club Fed"), comprising representatives from the EPA, NMFS, USFWS, and the USBR, have developed and signed a framework agreement for the Bay-Delta Estuary. The agreement provides for improved coordination and communication among State and federal agencies with resource management responsibilities in the estuary. It covers the water quality standards setting process; coordinates water supply project operations with requirements of water quality standards, endangered species laws, and the Central Valley Project Improvement Act; and provides for cooperation in planning and developing long-term solutions to the problems affecting the estuary's major public values.
Coordination of State-federal resource management and long-range planning in the Bay-Delta Estuary is necessary to promote regulatory consistency and stability and to address the estuary's environmental problems in a manner that minimizes the costs to the State in water for urban and agricultural uses and in dollars.
To mitigate fish losses at Delta export facilities, both the SWP and the CVP have entered into agreements with DFG. The SWP's Harvey O. Banks Delta Pumping Plant lies at the head of the California Aqueduct near the City of Tracy. When the plant was initially constructed, seven of the eleven pumping units planned were installed. The remaining four units were only recently installed to provide more operational flexibility.
During the environmental review process for installation of the remaining four pumps, DFG and DWR began negotiating an agreement for the preservation of fish potentially affected by the operation of the pumps. A unique aspect in the development of this agreement was the assistance provided by an advisory group made up of representatives from United Anglers, the Pacific Coast Federation of Fishermen's Associations, the Planning and Conservation League, and the State Water Contractors.
The Fish Protection Agreement was signed by the directors of the two departments in December 1986 and identifies the steps needed to offset adverse fishery impacts of the Banks Pumping Plant. It sets up a procedure to calculate direct fishery losses annually and requires DWR to pay for mitigation projects that would offset the losses. Losses of striped bass, chinook salmon, and steelhead are to be mitigated first. Mitigation of other species is to follow as impacts are identified and appropriate mitigation measures found. In recognition of the fact that direct losses today would probably be greater if fish populations had not been depleted by past operations, DWR also provided $15 million to initiate a program to increase the probability of quickly demonstrated results.
Decision 1485 ordered USBR and DWR to develop a plan to protect the Suisun Marsh. The Suisun Marsh consists of a 55,000-acre managed wetland area in southern Solano County, just beyond the confluence of the Sacramento and San Joaquin rivers. One of the largest contiguous brackish water marshes in the United States, the Suisun Marsh is a unique and irreplaceable resource for migratory waterfowl. During the fall and winter, waterfowl traveling along the Pacific Flyway depend on the marsh as a feeding and resting area. An adequate supply of water is essential to maintain the health of the marsh. Upstream water diversions have reduced the Delta outflows that maintain the water quality required by the marsh ecosystem.
The Suisun Marsh Preservation and Restoration Act of 1979 authorized the Secretary of the Interior to enter into a Suisun Marsh cooperative agreement with the State of California to protect the marsh, and specified the federal share of costs for facilities. The plan was subsequently developed by DWR and other interested parties, and the initial facilities were completed in 1981. A salinity control structure on Montezuma Slough, consisting of radial gates and a boat lock, was completed in 1989. Negotiations among the Suisun Resource Conservation District, DFG, DWR, and USBR resulted in an agreement that would moderate the adverse effects of the SWP, CVP, and other upstream diversions on the water quality in the marsh. The agreement, along with a monitoring agreement and a mitigation agreement, approved in March 1987, describes proposed facilities to be constructed, a construction schedule, cost-sharing responsibilities of the State and federal governments, water quality standards, soil salinity, water quality monitoring, and purchase of land to mitigate the impacts of the Suisun Marsh facilities themselves.
A significant feature of the agreement is the schedule and sequence of construction for the facilities of the Plan of Protection which provides for test periods during which the effectiveness of the constructed facilities is to be evaluated. Assessments will then be made to determine whether additional facilities will be needed to meet the water quality standards of the agreement.
The following sections are brief descriptions of major statutes affecting surface water management in California.
The statutes authorizing the major regional water projects in California are listed in Appendix A and include: the Hetch Hetchy Project, which supplies Tuolumne River water to the City and County of San Francisco and other Bay Area cities; the Colorado River Aqueduct, which supplies water from the Colorado River to serve several major urban areas in Southern California; the Los Angeles Aqueduct, which delivers water from the Owens Valley to the City of Los Angeles; and the Mokelumne River Aqueduct operated by the East Bay Municipal Utility District, which transports Sierra Nevada water from Pardee Reservoir to eastern San Francisco Bay cities. These projects are more fully described in Chapter 3, Surface Water Supplies.
Besides the major regional projects, there are over 40 different statutes under which local agencies may be organized and have, among their powers, the authority to distribute water. In addition, there are a number of special act districts, such as the Metropolitan Water District of Southern California. DWR Bulletin 155-94, General Comparison of Water District Acts (March 1989), presents a comparison of various water district acts in California.
On October 30, 1992, the President signed PL 102-575 into law, Title XXXIV of which is the Central Valley Project Improvement Act. The act is the first major piece of legislation to deal with the Central Valley Project since the Reclamation Reform Act of 1982, which made major reforms to acreage limitations and subsidies. The act makes significant changes to the management of this federal reclamation project, and creates a complex set of new programs and requirements applicable to the project. The USBR and the U.S. Fish and Wildlife Service, as directed by the Secretary of the Interior, are beginning to put into place the interim guidelines and procedures necessary to implement the act's provisions; however, it will take a number of years to complete all of the specified actions called for in the legislation.
The act covers five primary areas: limitations on new and renewed CVP contracts, water conservation and other water management actions, water transfers, fish and wildlife restoration actions, and establishment of an environmental restoration fund. With a few exceptions, new contracts for CVP water are prohibited until several requirements have been met, including completion of a programmatic Environmental Impact Statement analyzing direct and indirect impacts and benefits of implementing the act, including fish, wildlife, and habitat restoration and the potential renewal of the existing CVP water contracts.
Renewals of existing water service contracts are limited to a term of 25 years, and contracts can only be renewed on an interim basis until environmental documentation required by the act is completed. Specified water conservation provisions are to be added to the renewed, amended, and new water service contracts. Project water can now be transferred outside of the CVP service area on a willing seller/willing buyer basis, subject to approval of the transfer by the Secretary of the Interior and a number of other limiting conditions, some of which are discussed below in the Water Transfers section.
Implementation of environmental restoration measures is a major goal of the act, which specifically reauthorizes the CVP to establish fish and wildlife mitigation, protection, and restoration on a par with domestic and irrigation uses of water, and additionally places fish and wildlife enhancement on a par with hydropower generation. The act requires that 800,000 af annually of project yield be dedicated to general fish and wildlife, and habitat, purposes. It establishes a goal of doubling the natural production of anadromous fish in Central Valley rivers and streams (except for part of the San Joaquin River, which is treated separately) by 2002. The act further requires dedication of additional water for Trinity River instream flows, and for wetlands habitat areas in the Sacramento and San Joaquin valleys. The Secretary of the Interior is directed to undertake a number of physical measures to restore the fishery and habitat, such as construction of a temperature control device at Shasta Dam, and establishment of fish screening programs. The act requires that the Secretary enter into a cost-sharing agreement with the State of California for some of these mandated restoration measures. However, California's continuing budget difficulties make cost sharing problematic at this time. Funding for the restoration measures also comes from increased payments by CVP water and power users, from the federal treasury, and from a fee of $25 per acre-foot levied on water transferred to non-CVP municipal and industrial water users.
As early as 1952, in a report titled Feasibility of State Ownership and Operation of the Central Valley Project of California, the State recognized that State ownership of the CVP would be in its best interests. Transfer of the CVP to the State of California is one of the elements of the Governor's Long-Term Water Policy Framework for California. The policy recognizes that transfer of the CVP to California will optimize operational flexibility of the CVP and the SWP, and it could assure that California, rather than the federal government, has the authority for planning and allocating the State's water resources.
In March 1992, California's Governor and the federal Secretary of the Interior designated representatives to negotiate the transfer of control of the CVP to the State. Any such transfer will require: (1) authorizing legislation from Congress, (2) compliance with NEPA, CEQA, and other applicable State and federal laws, and (3) negotiation of detailed terms and conditions for the transfer. On December 14, 1992, the Governor and the Secretary of the Interior signed a Memorandum of Agreement outlining the process necessary to comply with NEPA and CEQA and for developing detailed terms and conditions. In 1993, the negotiations were stopped as other events affecting the CVP eclipsed this process.
Factors having major influence on water management and policy over the past six years have been the 1987-1992 drought, expanding water needs due to growth and increasing recognition of the need for instream water uses, endangered species considerations, and the increasing difficulty of developing new water supplies, due in large part to environmental restrictions. In response to these problems, water managers are paying added attention to using water transfers and emphasizing water conservation. More attention is also being given to solving water management problems on a regional basis.
Many water resource managers view water transfers, with appropriate safeguards against adverse environmental and third-party impacts, as an important tool for solving some of California's water supply and allocation problems. In fact, water transfers have occurred in California since Gold Rush days. There are generally fewer environmental impacts associated with transfers than with construction of conventional projects, and although difficult to implement, transfers can be implemented more quickly and usually at less cost than construction of additional facilities.
Under existing law, holders of both pre-1914 and appropriative water rights can transfer water. Holders of pre-1914 appropriative rights may transfer water without seeking approval of SWRCB, provided no other legal user of water is injured. Holders of appropriative rights may transfer water, but SWRCB must approve any transfer requiring a change in terms and conditions of the water right permit or license, such as place of use, purpose of use, or point of diversion. Short-term (one year or less) temporary transfers of water are exempt from compliance with CEQA, provided SWRCB approval is obtained. SWRCB must find no injury to any other legal users of the water and no unreasonable effect on fish, wildlife, or other instream beneficial uses. CEQA compliance is required for long-term transfers. (See Table 2-1 for further details.) Because of complex environmental problems in the Delta, SWRCB has announced it will not approve long-term transfers that increase Delta pumping until completion of an environmental evaluation of the cumulative impacts. In addition, permits from fish and wildlife agencies may be required if a proposed transfer will affect threatened or endangered species.
Water held pursuant to riparian rights is not transferable from place to place, although downstream appropriators may contract with riparians to leave water in a stream for potential downstream diversion. Water rights along an adjudicated stream that prior to the adjudication would have been considered riparian may be transferred subject to the terms of the court decree. Similarly, contractual water rights based upon an exchange for riparian rights may be transferable subject to the terms of the exchange contract. Transfers of ground water, and ground water substitution arrangements whereby ground water is pumped as a substitute for transferred surface water, may be, in some cases, subject to statutory restrictions designed to protect ground water basins against long-term overdraft and to preserve local control of ground water management. Under Water Code Section 1707, SWRCB can authorize conversion of any existing water right into an "instream appropriation" to benefit fish, wildlife, or other instream beneficial use. The potential of this new code section is just beginning to be explored. If the parties to a transfer intend to use facilities belonging to the SWP, CVP, or other entity for transporting the water, permission must be sought from the owner of the facility.
Water obtained pursuant to a water supply contract is also potentially transferable. However, most water supply contracts require the consent of the entity delivering the water. Almost all types of water rights can also be transferred in California, but typical transfers are structured so that water is transferred, while the original holder retains the water right. Several statutes provide that transfers of water do not impair or cause forfeiture of water rights.
As a result of conditions in California during the 1987-92 drought, transfers of water between suppliers or users who could temporarily reduce their usage to areas with water shortages have become more prevalent. Some of these transfers have been within the context of a State Drought Water Bank first created by Governor Wilson in 1991 and administered by DWR. The water bank was designed to move water from areas of greatest availability to areas of greatest need. There were three sources of water for the 1991 State Drought Water Bank: temporary surplus in reservoirs, surface supplies freed up by the use of ground water, and surface supplies freed up by fallowing agricultural lands. The 1992 State Drought Water Bank did not purchase surface supplies freed by fallowing of agricultural lands. Transfers of water outside the State-sponsored Water Bank have also become more prevalent, and many of these transfers involve DWR because they require conveyance of the transferred water through SWP facilities.
In 1991, temporary changes to the law designed to facilitate the State Drought Water Bank were enacted. These changes were made permanent in 1992. The law now authorizes water suppliers (local public agencies and private water companies) to contract with water users to reduce or eliminate water use for a specified period of time, and to transfer the water to a State Drought Water Bank or other water suppliers and users. It also provides that water proposed for transfer need not be surplus to requirements within the supplier's service area and specifies that use for a transfer is a beneficial use. Substitution of ground water from an overdrafted ground water basin for transferred surface water is prohibited unless the water was previously recharged to the basin as part of a ground water banking program. The amount of water made available by land fallowing is limited to 20 percent of the amount applied or stored by the water supplier unless the supplier approves a larger amount at a hearing.
Although these changes do much to facilitate water transfers by water suppliers, they do not address the issue of "user-initiated transfers" where the water user is not the holder of the water right, but has a contractual entitlement to water from the water supplier. There is much interest in developing legislation acceptable to suppliers, users, and potential buyers, whereby users can initiate transfers subject to reasonable terms and conditions imposed by suppliers to protect their legitimate interests and those of other water users.
The Central Valley Project Improvement Act of 1992 also contains provisions intended to increase the use of water transfers by providing that all individuals and districts receiving CVP water (including that under water right settlement and exchange contracts) may transfer it to any other entity for any project or purpose recognized as a beneficial use under State law. The Secretary of the Interior must approve all transfers. The affected district must approve any transfer involving over 20 percent of the CVP water subject to long-term contract with the district. Section 3405 (a) (1) also sets forth a number of conditions on the transfers, including conditions designed to protect the CVP's ability to deliver contractually obligated water or meet fish and wildlife obligations because of limitations in conveyance or pumping capacity. The conditions also require transfers to be consistent with State law, including CEQA. Transfers are deemed to be a beneficial use by the transferor, and are only permitted if they will have no significant long-term adverse impact on ground water conditions within the transferor district, and will have no unreasonable impact on the water supply, operations, or financial conditions of the district.
Article X, Section 2 of the California Constitution prohibits the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water. It also declares that the conservation and use of water "shall be exercised with a view to the reasonable and beneficial use thereof in the public interest and for the public welfare." Although provisions and requirements of the Constitution are self executing, the Constitution states that the Legislature may enact statutes in furtherance of its policy. Water Code Section 275 directs the Department of Water Resources and the State Water Resources Control Board to "take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste or unreasonable use of water."SWRCB's Water Right Decision 1600, directing the Imperial Irrigation District to adopt a water conservation plan, is an example of an action brought under Article X, Section 2. The board's authority to order preparation of such a plan was upheld in 1990 by the courts in Imperial Irrigation District v. State Water Resources Control Board.
Urban Water Management Planning Act. Since 1985, this act has required urban water suppliers serving more than 3,000 customers or more than 3,000 acre-feet per year to prepare and modify urban water conservation plans. The act authorizes the supplier to implement the water conservation program. The plans must contain a number of specified elements, including: estimates of water use; identification of existing conservation measures; identification of alternative conservation measures; a schedule of implementation of actions proposed by the plan; and, identification of the frequency and magnitude of water shortages. In 1991, the act was amended in response to the drought to require water suppliers to estimate water supplies available at the end of one, two, and three years, and to develop contingency plans for severe shortages.
Water Conservation in Landscaping Act. The Water Conservation in Landscaping Act required DWR, with the assistance of an advisory task force, to adopt a model water efficient landscape ordinance. The model ordinance was adopted in August 1992, and has been codified in Title 23 of the California Code of Regulations. It establishes methods of conserving water through water budgeting plans, plant use, efficient irrigation, auditing, and other methods.
Cities and counties were required to review the model ordinance and adopt a water efficient landscape ordinance by January 1, 1993, if they had not done so already. Alternatively, cities and counties could make a finding that such an ordinance is unnecessary due to climatic, geological, or topographic conditions, or water availability. If a city or county failed to adopt a water efficient landscape ordinance or make findings by January 31, 1993, the model ordinance became effective in that jurisdiction.
Agricultural Water Management Planning Act. Under this act, agricultural water suppliers supplying greater than 50,000 af of water were required to submit a report to DWR indicating whether there exists a significant opportunity to conserve water or reduce the quantity of highly saline or toxic drainage water through improved irrigation water management. The act provided that agricultural water suppliers, who indicated that they had an opportunity to conserve water or reduce the quantity of highly saline or toxic water, were to prepare a water management plan and submit it to DWR no later than December 31, 1991. The act provides that the contents of the water management plans include a discussion of the water conservation practices currently used and a determination of whether, through improved management practices, an opportunity exists for additional water conservation. DWR was required to review the plans and submit a report to the Legislature by January 1993. Currently, almost 60 information reports and plans have been submitted to DWR.
Agricultural Water Suppliers Efficient Management Practices Act. The Agricultural Water Suppliers Efficient Management Practices Act, adopted in 1990, requires that DWR establish an advisory task force to review efficient agricultural water management practices. DWR is required under the act to offer assistance to agricultural water suppliers seeking to improve the efficiency of water practices. Members of the Committee have been selected and are working on methods to promote efficient practices. At the request of the Governor, the committee is working on a Memorandum of Understanding to implement the practices. A subcommittee is meeting on a monthly basis to complete this task. The proposed EWMPs are listed in Chapter 7.
Agricultural Water Conservation and Management Act of 1992. This act gives any public agency that supplies water for agricultural use, authority to institute water conservation or efficient management programs. The programs can include irrigation management services, providing information about crop water use, providing irrigation consulting services, improving the supplier's delivery system, providing technical and financial assistance to farmers, encouraging conservation through pricing of water, and monitoring.
Urban Best Management Practices MOU. The Urban BMPs are being implemented under the auspices of the California Urban Water Conservation Council. This council consists of about 150 water agencies, environmental organizations, and other interested parties. The council is responsible for quantifying BMPs, reviewing exemptions requested by water agencies from certain BMPs, and evaluating potential BMPs. The BMPs and potential BMPs are discussed in Chapter 6, under Urban Water Conservation.
Water Recycling Act of 1991. This act makes legislative findings regarding the environmental benefits and public safety of using recycled water as a reliable and cost-effective method of helping to meet California's water supply needs. It sets a statewide goal to recycle 700,000 AF per year by the year 2000 and 1,000,000 AF by 2010.
Management programs are increasingly being used as an approach to solving complex sets of regional water management problems. Three management programs that have had some success in dealing with regional issues are discussed below. Both the Sacramento River Fishery and Riparian Habitat Restoration Plan and the Management Plan for Agricultural Subsurface Drainage and Related Problems on the Westside San Joaquin Valley (San Joaquin Valley Drainage Program) have been completed and are currently being used in making decisions affecting those resources. As discussed below, the San Joaquin drainage program addresses significant agricultural drainage issues, and elements of the plan are being implemented under both the 1992 CVP reform legislation and state legislation, particularly in the areas of water marketing and transfers, land fallowing, and conservation efforts. The San Joaquin River Management Program is still in the process of developing a management plan as of the writing of this Bulletin, and it appears a similar approach may be used by the Bay-Delta Oversight Council appointed by the Governor to "fix the Delta" in accordance with his April 1992 Water Policy.
Sacramento River Fishery and Riparian Habitat Restoration. In 1986, State legislation was enacted calling for a management plan to protect, restore, and enhance the fish and riparian habitat and associated wildlife of the Upper Sacramento River. The plan was prepared by an advisory council working closely with an action team, both composed of people representing a wide range of federal, State, and local agencies and private interests concerned with promoting the renewed health of the upper Sacramento River system. It was prepared with a spirit of cooperation and consensus and was published in January 1989. In September 1989, Senate Concurrent Resolution No. 62 declared that it is the policy of the State to implement the actions recommended in the Upper Sacramento River Fisheries and Riparian Habitat Management Plan. The plan recommends 20 fishery improvement items, several of which are contained in the CVP Improvement Act. Some items such as gravel restoration and Mill and Clear Creeks' restoration are receiving attention from various agencies.
San Joaquin Valley Drainage Program. The San Joaquin Valley Drainage Program was a federal and State interagency program established in August 1984 by the Secretary of the Interior and the Governor of California to study agricultural drainage problems in the San Joaquin Valley. The study was, in large part, a response to drainage problems that came to a head with the discovery of deformities and deaths of aquatic birds at Kesterson National Wildlife Refuge in 1983 that were determined to be caused by selenium poisoning.
The San Joaquin Valley has had a long history of inadequate drainage disposal and accumulation of salts on agricultural land. With importation of water for agricultural irrigation by the CVP and SWP, the problems were exacerbated. The original CVP and SWP plans called for the construction of the San Luis drain, with an outfall in the western Delta, as a joint federal and State facility. The State declined to participate, but the USBR eventually built the initial portion of the drain, about 120 miles of collector drains, and the first phase of a reservoir (Kesterson) designed to temporarily retain drainage water.
The drain never reached the proposed outlet into the Delta because in the mid-1970s questions about the potential effects of untreated agricultural drainage water on the quality of water in the Delta and San Francisco Bay were raised. Around that time it was decided that Kesterson should be used to store and evaporate drainage water until the outlet to the Delta could be built. Once the deformities and deaths of aquatic birds were discovered, however, use of Kesterson was halted and the reservoir was eventually closed in 1988.
In September 1990, the San Joaquin Valley Drainage Program published its final report, A Management Plan for Agricultural Subsurface Drainage and Related Problems on the Westside San Joaquin Valley. The recommended plan was regional and provided a framework designed to permit the present level of agricultural development in the San Joaquin Valley to continue for a few years while protecting fish and wildlife and helping to restore their habitat to levels existing before direct impact by contaminated drainage water.
The major components of the plan included: (1) control of the source of contaminated water by reducing application of irrigation water; (2) reuse of drainage water on progressively more salt-tolerant plants; (3) use of an evaporation system with safeguards for wildlife; (4) retirement of land with shallow ground water, elevated selenium, and soils that are difficult to drain; (5) management of ground water by pumping water suitable for irrigation or wildlife habitat from deep within the aquifer in order to lower surface water tables; (6) limited discharges to the San Joaquin River that meet water quality objectives; (7) protection, restoration, and provision of substitute water supplies for fish and wildlife habitat and fresh water supplies for wetlands habitat; and (8) institutional changes such as tiered pricing, water marketing and transfers, improved delivery scheduling, and formation of regional drainage management organizations.
To facilitate carrying out the plan component involving land retirement, the Legislature in 1992 enacted the San Joaquin Valley Drainage Relief Act, which permits DWR to acquire land and manage it (or enter into agreements to have the land managed by DFG or nonprofit organizations) as upland habitat, wetlands, or riparian habitat. In order to make the program self-supporting, water conserved as a result of the retirement of land would be sold and the proceeds used to purchase and retire additional lands.
The act requires DWR to maximize the water available for environmental needs and permits local agencies to use up to one-third of the water conserved and not sold for environmental purposes. The act recognizes that taking land out of production may impact local economies and directs DWR to consider these effects in purchasing land. It also directs DWR to coordinate with both the USBR, which provides much of the water to these areas, and local water agencies. Finally, the act expresses legislative intent that water distributed under the program be deemed contributions to a water resources mitigation bank, if such a bank is established.
The Central Valley Project Improvement Act also contains provisions relating to the San Joaquin Valley Drainage Program's plan. Section 3405 (e) establishes an office charged with developing criteria for and evaluating the adequacy of CVP contractors' water conservation plans. The office is required to give recognition to the final report of the San Joaquin Valley Drainage Program, among other things, in developing the criteria. Section 3406(b)(3) requires the Secretary of the Interior to implement a program to develop supplemental environmental water in conformance with the plan to double anadromous fisheries and the waterfowl habitat measures. "[T]emporary and permanent land fallowing, including purchase, lease, and option of water, water rights and associated agricultural land" are specifically mentioned as methods of developing the additional environmental water. Section 3408(h) specifically authorizes the Secretary of the Interior to purchase land to retire from irrigation if it would assist in water conservation or improve agricultural drainage or waste water problems. Once again the San Joaquin Valley Drainage Program report was specifically referred to. Finally, Section 3408(j) requires the USBR to develop a plan to replace water supplies for those used for fish and wildlife purposes within 15 years through a variety of means, including the purchase and idling of agricultural land.
San Joaquin River Management Program. In 1990, California legislation created a program ". . .to provide for the orderly development and management of water resources of the San Joaquin River system to accomplish compatible improvements of the system for flood protection, water supply, water quality, and recreation, and for the protection, restoration and enhancement of fish and wildlife." It created an Advisory Council and Action Team with members representing a wide range of State and local governmental, private, environmental, and other interests. The members meet on a regular basis. Their meetings formally began in November 1990 and are open to the public. Their objectives are to identify and describe issues and problems, establish a series of priority actions, identify proposed funding sources, and facilitate coordinated actions in the area. They are required to submit an annual report to the Legislature.
The Colorado River provides a primary source of supply for the South Coast and Colorado River regions. In addition to California, the states of Arizona, Nevada, Wyoming, Colorado, New Mexico, and Utah, and the Republic of Mexico, all use water from the Colorado River. In 1922, the seven states entered into an interstate compact which includes a provision for the equitable division and apportionment of the use of the waters of the Colorado River system. The Boulder Canyon Project Act of 1928 provided, among other things, for the construction of works to protect and develop the Colorado River Basin by the Department of Interior.
In the California Limitation Act of 1929, the State Legislature limited California's use of Colorado River water in response to requirements of the Boulder Canyon Project Act. Priorities within California were listed in a Seven Party Agreement of 1931. The United States-Mexico water treaty, signed in 1944, obligates the U.S. to deliver 1.5 maf per year to Mexico (up to 1.7 maf in surplus years). The U.S. Supreme Court Decree in Arizona v. California, 1964, established several additional dimensions to the apportionment of Colorado River water, including apportionments to the lower basin states--Arizona, Nevada, and California. In 1968, the Colorado River Basin Project Act authorized the Central Arizona Project and specified how water would be allocated to the lower basin states in years of insufficient runoff in the main stream (river) to satisfy the specified consumptive use of 7.5 maf. The act provided that California allocations of 4.4 maf have priority over allocations to the Central Arizona Project.
The Colorado River Board of California is the state agency with statutory responsibility to represent and protect the interests of California, its agencies, and its citizens concerning the water and power resources of the Colorado River system.
Throughout the 1950s and 1960s interstate disputes over the waters of Lake Tahoe and the Truckee, Carson, and Walker rivers led the states of California and Nevada to negotiate an interstate compact equitably apportioning these waters. The California-Nevada Interstate Compact was adopted by the two states in 1968 and ratified by their legislatures. Efforts of the two states to have the California-Nevada Interstate Compact approved by Congress were unsuccessful. Although numerous consent bills were introduced in Congress from 1971 to 1986, consent was never forthcoming. After 1986, the two states gave up trying to obtain congressional consent to the Compact.
The states did not give up other Congressional action. A new round of negotiations among the states, the federal government, the Pyramid Lake Paiute Tribe of Indians, and other interested parties led to the federal Truckee-Carson-Pyramid Lake Water Rights Settlement Act. Section 204 of this act specifies an apportionment of Lake Tahoe and the Truckee and Carson rivers between California and Nevada. It is the first Congressional apportionment since the Boulder Canyon Project Act of 1928. The act also addresses a number of other issues, including settlement of certain water supply disputes among the Pyramid Lake Tribe and other users of the Truckee and Carson rivers. The act also addresses a number of environmental issues, including recovery of Pyramid Lake fish species listed under the federal Endangered Species Act and protection and restoration of Lahontan Valley wetlands. Many of the act's provisions, including the interstate apportionment, will not become effective until a number of conditions are met, including dismissal of certain lawsuits and the negotiation of an operating agreement for the Truckee River between the United States, the two states, the Tribe, the Sierra-Pacific Power Company, and other parties.
For further information on the history of the Truckee River water rights disputes, and how they are addressed by the Settlement Act, see DWR's June 1991 Truckee River Atlas, and the December 1991 Carson River Atlas.
Interstate aspects of the shared upper Klamath River and Lost River basins
are addressed through the Klamath River Basin Compact. Negotiated by the states
of Oregon and California, approved by their respective Legislatures, and consented
to by the U.S. Congress in 1957, the compact is to (1) facilitate orderly development
and use of water, and (2) further cooperation between the states in the equitable
sharing of water resources. The compact is administered by the Klamath River
Compact Commission, which is chaired by a federal representative appointed
by the President. The commission provides a forum for communication between
the various interests concerned with water resources in the upper Klamath River
Basin. Its recent activities have focused on water delivery reductions caused
by the drought and operating restrictions to protect two species of endangered
sucker fish. Other pressing issues are water supplies for wildlife refuges
and upper basin impacts on anadromous fisheries in the lower Klamath River.
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