Swing, Pendulum, Swing: California's Historic Drought and Unprecedented Responses
| Publication year | 2014 |
| Author | By Paeter E. Garcia* and Sarah Christopher Foley** |
By Paeter E. Garcia* and Sarah Christopher Foley**
Most know by now that California is facing one of its driest years in recorded history. Yet droughts are not new to California, and to put things in context we can be thankful that current drought conditions are only as bad as they are. The "dustbowl drought" ofthe 1920s and 1930s nearly crippled the state. And even that could have been worse: tree-ring data show that centuries ago California and other western states were gripped by mega-droughts spanning 20 to 50 years.
Water is said to be our most critical natural resource (try going without it for a couple days). Ironically, however, it is something most Californians have taken for granted. But that dynamic is now beginning to change. Water education is catching up and catching on, and the conundrum we face with increasing demand and shrinking supply is practically impossible to ignore. Recent projections show the statewide population growing by almost 10 million over the next 20 years, to a total of 45 million. But the supply curve is going the other way. Over the last 10 years, various legal and regulatory decisions have substantially decreased the amount of water available from the State's largest water supply projects, the State Water Project (SWP), the federal Central Valley Project (CVP), and the Colorado River.
The SWP and CVP combined deliver water to more than 25 million people throughout California and to millions of acres of prime farmland in the Central and San Joaquin Valleys. Both projects require moving water through the Sacramento-San Joaquin Delta (the Delta), which has been subject to an increasing set of operating and delivery restrictions to protect in-Delta water users, water quality, and rare and endangered fish species in the Delta. Recent restrictions have resulted from biological opinions issued under the federal Endangered Species Act by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to protect Delta smelt and anadromous salmon. Delta water supplies are now also the subject of various state and federal court litigation. Supplies from the Colorado River are facing similar pressures. California shares the Colorado River with other states whose reliance on the system has increased as their populations have grown. Whereas California used to rely on "surplus" water from the Colorado, that surplus is gone, and the state must now live within its annual allotment of 4.4 million acre-feet per year. The Quantification Settlement Agreement (QSA), California's plan for the allocation, transfer, use, and conservation of its share of Colorado River water, was attacked through state and federal litigation for over a decade. Fortunately, the QSA withstood challenge, but the availability and reliability of Colorado River supplies continue to decline as problems relating to climate change, water quality, endangered species, and legal issues become more prevalent.
Add multi-year drought conditions to the equation, and suddenly everyone is talking about water. And for good reason. The winter and spring seasons of 2012-2013 were below normal and many knew "things were going to get bad in California" if the state did not have good rain and snowfall numbers in late 2013. But the rain and snow did not come. Indeed, the numbers were so dismally low that the California Department of Water Resources (DWR) has declared the 2013-2014 period as the driest year in recorded history. In early 2014, a zero percent allocation was initially declared for the SWP, and the final allocation was bumped to a mere five percent. Vast portions of the CVP will go entirely without deliveries this year. As of early September, Lake Oroville (the largest SWP reservoir) was at 31 percent of capacity and Lake Shasta (the largest CVP reservoir) was at 28 percent of capacity. The San Luis Reservoir, a key south-of-Delta supply and regulating pool for the SWP and CVP, holds only 19 percent of capacity.
Throughout the state, many watersheds and surface water supplies are much drier than normal. Some areas are badly parched and others are literally out of water. In response, the State Water Resources Control Board (State Board) has taken regulatory action to limit diversions from certain river systems. And with less surface water available, many local agencies, businesses, and individuals are ramping up production from already strained or overdrafted groundwater supplies. For those who rely on groundwater, some have reached the bottom of the well, and there is nothing left to pump. This in turn has brought sweeping legislative reform to California's groundwater management laws. In addition, the drought has prompted aggressive state action to promote recycled water use and increase water conservation.
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Current drought conditions have brought California to a crossroads. While opinions vary on which way to go, most agree that clear direction is needed. Big steps are being taken already, thrusting key legal and policy issues into the spotlight.
On January 17, 2014, Governor Jerry Brown declared a state of drought emergency (the Declaration) in response to record low water levels in California's rivers and reservoirs and an abnormally low snowpack. The Declaration took several extraordinary steps, including the following:
- Directed local urban water suppliers and municipalities to immediately implement local water shortage contingency plans and update urban and agricultural water management plans;
- Required DWR to undertake a statewide water conservation program to encourage Californians to reduce water use by 20 percent;
- Directed the State Board to expedite the processing of water transfers to enable the efficient use of water;
- Instructed DWR and the State Board to accelerate funding for water supply enhancement projects that are capable of breaking ground this year;
- Directed the State Board to place state water right holders on notice that they may be required to cease or reduce water diversions;
- Required DWR to evaluate changing groundwater levels, land subsidence, and agricultural land fallowing as the drought persists and to provide a public update by April 30, 2014, to identify groundwater basins with water shortages;
- Directed the California Department of Food and Agriculture to connect farmers to state and federal programs for assistance during the drought; and
- Required the Governor's Drought Task Force to develop a plan to provide emergency food, financial assistance, and unemployment services in communities expected to suffer high levels of unemployment as a result of the drought.
The Governor's Declaration also exempted the state from compliance with aspects of water quality plans and the California Environmental Quality Act (CEQA) when undertaking certain actions necessary to make water immediately available during the drought. For example, the Declaration suspends CEQA from applying to the State Board's approval of petitions requesting water transfers and exchanges between users within the SWP and CVP. It also suspends CEQA from applying to State Board decisions to modify reservoir release requirements or diversion limitations in place to implement a water quality control plan.
On April 25, 2014, the Governor issued a Proclamation of a Continued State of Emergency (the Proclamation) due to persisting record-low water conditions and in anticipation of extended dry months throughout the summer. The Proclamation builds upon the January drought Declaration, and strengthens the state's ability to effectively manage water resources while calling on all Californians to redouble their efforts to conserve water. The Proclamation moved beyond the Declaration by further waiving CEQA compliance for certain actions taken by state agencies. Specifically, the Proclamation suspends CEQA to allow the following:
- Processing of DWR and/or State Board requests to transfer water to areas of need;
- Implementation of water reduction plans to reduce potable water usage for outdoor irrigation at recreational facilities and large institutional complexes;
- Immediate monitoring of endangered species (such as the Sacramento River's winter-run Chinook salmon) by the Department of Fish and Wildlife;
- Implementation of projects by DWR to benefit fish and wildlife impacted by the drought, including certain projects in priority watersheds designed to protect threatened and endangered species;
- Implementation of pump-back water deliveries by DWR through SWP facilities on behalf of water districts;
- Adoption of statewide general waste discharge requirements by the State Board to facilitate the use of recycled water and reduce demand on potable supplies;
- Provision of DWR and State Board assistance to public agencies and private water companies to establish temporary water supply connections;
- Implementation of an agricultural assistance program by the California Department of Food and Agriculture; and
- Adoption of emergency regulations by the State Board relating to water conservation.
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In addition, the Proclamation suspends CEQA for local agency actions necessary to implement measures recommended by the Department of Public Health to abate acute drinking water shortages, subject to certain conditions. The Proclamation also requires the State Board to direct any urban water suppliers that are not already implementing drought response plans to limit outdoor irrigation and other wasteful water practices, and to request an update from urban water suppliers on the effectiveness of their current actions to reduce water usage.
Although California enacted a statewide surface water law in 1914 requiring permits for appropriative surface water diversions and use, the state has never broadly regulated groundwater. This is unusual because nearly all other states have some...
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