California has a water problem and it is not limited to the drought. Recent trends relating to climate change have exposed a greater issue related not only to quantity of water available, but the infrastructure upon which the state relies to deliver the resource to its population. Not only is water availability a necessity for residential use, but it is crucial for the California agricultural economy (a $47 billion dollar industry). Because of the widespread importance of California agriculture, how the state choses to address this issue necessarily affects the entire United States.
As climate change takes hold, patterns of more extreme weather become more frequent. This means that there will be periods of intense drought followed by heavy rain events. California experienced this exact trend in 2015 and 2016. A period in which drought was so intense that Governor Jerry Brown issued mandatory restrictions on water use for both residential and commercial users. The drought was then followed by one of the wettest years on record, highlighted by the partial failure of the Oroville Dam north of Sacramento due to lack of capacity to store water.
California realizes these problems exist and are making strides to correct the infrastructure issues through a comprehensive project known as California Water Fix, which employs new technologies to more effectively deliver and manage water supplies in times of both drought and excess quantities and provides environmental benefits through habitat restoration in the Sacramento River Delta. Unfortunately, California’s water rights legal regime perpetuates the issues of water management through a static body of law, which promotes waste.
By proposing such a massive infrastructural undertaking without addressing the more fundamental problem of water rights’ “use it of lose it” provisions, the state is putting the cart before the horse.
It is clear, that California’s water infrastructure is not up to par, as the state relies upon aqueducts that are more than 50 years old. Fundamentally, the project is a series of tunnels built underneath the Delta, which connect to Central Valley Project and State Water Project (the two major water delivery systems which funnel water from Northern to Southern California). The project is more efficient from an engineering standpoint, and connects water supplies more directly to the greater system. The tunnels also eliminate the need for many of the pumping stations that are currently in use along the existing system, because the tunnels rely on gravity for delivery. The project also creates greater access to water supplies that are currently restricted based upon environmental concerns (mostly Endangered Species Act implications) through 30,000 acres of habitat restoration in the delta region. It is clear that improvements along these lines must be made in order to address the increasingly variable water flows that result from climate change.
The project is not without criticism however. Counties in Southern California that would most likely face the cost burden of the project believe it is inefficient to import water from the North, when more localized solutions such as desalination or wastewater restoration plants could provide a similar service. While this is an apt criticism both options could be implemented it shouldn’t boil down to one or the other, when issues of water supply are predicted to persist. What these solutions miss however is the more fundamental issue of water rights laws that perpetuate waste within the water systems.
California’s water law doctrine functions primarily on a system of prior appropriation. Simply put a water user obtains a right to use a quantity of water by making “beneficial use” of that water. If users fail to make beneficial use of their appropriated right they may lose a portion or the entirety of the right through a process known as prescription. This implication is most important in the farming context as 80% of water used in California is used for agriculture. The prescription of rights has plagued California’s efforts to conserve water for decades, and has impeded the ability to propose creative solutions to water quantity issues that have proved effective in other western states (such as water banking). Some of the most egregious examples of this water waste include farmers flooding their fallow fields in times of greater supply in order to meet their use thresholds. Expanding beneficial use to include conservation measures, or a system of water banking using credits for users who supplied the water bank would be a first step to correcting these institutional inefficiencies.
Unless California addresses this legal deficiency, large scale projects such as California Water Fix will still be hampered by the issues of waste that pervade the water supply today.