By Carlos F. Ugalde
Four months ago, I wrote an article regarding the imminent water crisis in the United States, as well as the current national and local governmental policies addressing the issue. While the national response has been strong and uniform as evidenced by President Obama’s recent agreement with China to considerably reduce the amount of greenhouse gas emissions, the states’ approach has been weak and heavily fragmented.
However, on April 1, 2015, Governor Jerry Brown of California took steps in the right direction after announcing the first mandatory water reductions in California’s history in response to the devastating four-year drought that has affected the state. Don’t be misled- his words do have legal force.
Executive Order B-29-15 contains a mandate directing California’s State Water Resources Control Board to establish and enforce a 25 percent, across-the-board cutback of total water use over the coming year. This percentage will be benchmarked against 2013 figures. The order leaves it up to the discretion of the relevant state agencies to polish the details of the plan and enforce it.
Moreover, the Carlsbad Desalination Project, a $1 billion desalination plant is under construction in San Diego County, joining several small plants using this technology across the western coastline. This development has come after receiving firm opposition from its critics, who have characterized it as expensive and threatening to the environment. For instance, planning for the Carlsbad Desalination Project commenced almost eighteen years ago and has just recently been sanctioned by relevant state agencies, including the California Coastal Commission, State Lands Commission and Regional Water Quality Control Board. Texas and Florida, which are also facing similar challenges, are set to follow suit.
Notwithstanding these promising developments, many experts believe that the problem lies in California’s archaic water rights system, which follows the “first in time, first in right” rule. In simple terms, whoever secures the water rights first has priority over others. This system, however, was crafted centuries ago when environmental conditions were much improved and the state’s population totaled merely three million. In application, the system discourages water conservation and transfers of water rights that could be used for more efficient and higher priority purposes.
Richard M. Frank, an opinion writer at the San Francisco Chronicle, has proposed the following solutions: (1) recognizing that water is a public resource; (2) improving monitoring and reporting requirements regarding water diversions; (3) creating uniform and fixed terms for water right permits; (4) facilitating water transfers; (5) allowing water rights to be allocated for environmental uses; and (6) improving water rights enforcement.
In sum, it seems that California has begun to address its outdated and inefficient water laws. What remains to be seen, however, is whether actual enforcement will be undertaken, and whether the “Californian model” is adopted across the United States.
References:
Adam Nagourney, California Imposes First Mandatory Water Restrictions to Deal With Drought, N.Y. Times (April 1, 2015), http://www.nytimes.com/2015/04/02/us/california-imposes-first-ever-water-restrictions-to-deal-with-drought.html.
Exec. Order No. B-29-15, Exec. Dep’t State of California (April 1, 2015), available at http://gov.ca.gov/docs/4.1.15_Executive_Order.pdf.
Justin Gillis, For Drinking Water in Drought, California Looks Warily to Sea, N.Y. Times (April 11, 2015), http://www.nytimes.com/2015/04/12/science/drinking-seawater-looks-ever-more-palatable-to-californians.html?_r=0.
Office of the Press Secretary, Fact Sheet: U.S.-China Joint Announcement on Climate Change and Clean Energy Cooperation—Press Release, The White House (November 11, 2014), http://www.whitehouse.gov/the-press-office/2014/11/11/fact-sheet-us-china-joint-announcement-climate-change-and-clean-energy-c.
Richard M. Frank, Another Inconvenient Truth: California Water Law Must Change, S.F. Chronicle (April 10, 2015), http://www.sfchronicle.com/opinion/article/Another-inconvenient-truth-California-water-law-6192703.php.
The Carlsbad Desalination Project, http://carlsbaddesal.com.
