Working Lands and Agriculture and Land Stewardship: from an Uncertain Present to a Sustainable and Resilient Future for Water Management

• Publication year: 2020
• Author: by Katherine A. Spanos

WORKING LANDS AND AGRICULTURE AND LAND STEWARDSHIP: FROM AN UNCERTAIN PRESENT TO A SUSTAINABLE AND RESILIENT FUTURE FOR WATER MANAGEMENT

by Katherine A. Spanos^*

I. INTRODUCTION

California is frequently a leader in many areas, most notably agriculture, environmental protection and climate change. Many of the leading issues of the day relating to these areas are being addressed in the context of the use of working lands that can help lead to a sustainable and resilient future. These issues are being played out in agricultural areas of California¹ in the Sacramento-San Joaquin Valley and the Sacramento-San Joaquin Delta (Delta).²

This article first discusses what is meant by a sustainable and resilient future and describes working lands. It then identifies how the use of working lands for multi-purpose projects can have significant effects on land use and the local communities that live near and around the working lands. The article then discusses how and why current legal strategies that have only winners and losers may not be effective in resolving issues that arise in this context. The article provides an alternative paradigm that involves an open and transparent dialogue with local interests that could lead to all parties being winners.

A. WHAT IS MEANT BY A SUSTAINABLE AND RESILIENT FUTURE?

Anyone working in the environmental law or water management field today will be accustomed to hearing the words "sustainable" and "resilient," but few people have a common understanding of what is meant by these words.³

Merriam-Webster defines "sustainability" as "of, relating to, or being a method of harvesting or using a resource so that the resource is not depleted or permanently damaged" and "of or relating to a lifestyle involving the use of sustainable methods."⁴ It defines "resilient" as "capable of withstanding shock without permanent deformation or rupture and tending to recover from or adjust easily to misfortune or change."⁵ Although these terms are used in different ways and contexts depending on the scope of the content or the intent of the speaker, these dictionary definitions are adequate to provide a common ground for the discussion that follows. Since at least 2005, the concept of sustainable development and water use has been a core anchor of the California Water Plan which sets the stage for statewide water management planning:⁶

Sustainable development and water use, and environmental stewardship foster a strong economy, protect public health and the environment, and enhance our quality of life. Sustainable development relies on the full consideration of social, economic, and environmental issues in policy- and decision-making. Sustainable water use ensures that we develop and manage our water and related resources in a way that meets present needs while protecting our environment and assures our ability to meet the needs of the future.⁷

B. THE SCOPE OF ENVIRONMENTAL PROTECTION HAS EXPANDED OVER TIME

In the early days of environmental regulation, regulators and litigators were focused on environmental transparency, such as that found in the California Environmental Quality Act⁸ and the National Environmental Policy Act,⁹ or establishing and improving environmental health standards relating to air and water quality.¹⁰ Water management projects that served a public good, such as reservoirs, water delivery canals and flood control levees, were rarely challenged for environmental reasons. Over time, however, environmental concerns have broadened to include other areas, such as greater protection of species and their habitats and land use restrictions for environmental purposes.¹¹ People recognize that our resources are not unlimited and want to make sure that future generations will have what they need to live prosperous and satisfying lives.¹²

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Some lawyers are proposing a new kind of law called sustainable development law. Sustainable development is seen as a conceptual framework for fostering quality of life, freedom, and opportunity in which development and environmental protection are mutually reinforcing. Sustainable development law envisions integration among the areas of economic growth, social justice (including human rights) and environmental protection. Some proponents argue that it should include "participatory improvement in collective quality of life for the benefit of both present and future generations"¹³

C. FOCUS ON CLIMATE CHANGE MOVES FROM MITIGATION TO ADAPTATION

Climate change adds another layer of complexity to the picture. While the focus on climate change has been on mitigation, which means reducing greenhouse gas emissions,¹⁴ it is clear that adaptation to climate change impacts is garnering increased focus going forward.¹⁵ Changes in temperature and precipitation, and more extreme events (certainly in California) are likely to occur,¹⁶ but it is not clear where and when those changes might happen or how they will affect locations of plant and wildlife species that we want to protect. Protecting areas where current populations reside is not a guarantee that future populations will be able to survive in those same areas in the future.¹⁷

D. WATER MANAGEMENT ACTIVITIES HAVE IMMEDIATE LAND USE IMPACTS THAT AFFECT PEOPLE

As a result of current environmental regulation and climate change, governmental agencies have moved from maintaining existing water management facilities¹⁸ to proposing projects that have the potential to have significant land use impacts. Regulatory actions regarding habitat restoration consider the likelihood that species will move as a result of climate change.¹⁹ Water management agencies are also looking more holistically at water management from the headwaters to the floodplains including various land uses from environmental, agricultural, recreational, and urban and suburban settings.²⁰ Flood management projects are now looking beyond building and strengthening levees to widening flood plains beyond the river.²¹ Projects like these are likely to have an impact on land that is currently used for agricultural purposes.²²

In addition to the traditional "environmental" impacts,²³ these projects also have potential significant social and economic impacts. Understandably, local interests are concerned that these projects will remove large amounts of agricultural land from production and that they will adversely affect the economic and social fabric of rural communities.²⁴

Not so long ago, water management decision-making efforts focused on scientific and engineering feasibility and achievement of benefits of a project. More and more, facilitators of decisions are identifying the need to consider the effect of the project on people. For example, in 2009, legislation regarding the Delta called for improving water supply and ecosystems while maintaining the Delta as an evolving place.²⁵ A recent study for the Delta Stewardship Council, the agency implementing the Delta legislation, called A Social Science Strategy for the Sacramento-San Joaquin Delta states that "the social sciences can help in understanding how people interact with the Delta, how the Delta impacts their well-being, and how their actions (including adaptive management) impact the Delta environment-all of which contribute insight into protecting and restoring the Delta."²⁶ Funding is now being provided in the Delta for Community and Economic Enhancement Grants.²⁷ At a broader community scale, there is a growing recognition that California's prosperity depends on what some call "triple-bottom-line solutions to grow the economy, protect the environment and deliver opportunity for all."²⁸

II. WORKING LAND—OPPORTUNITIES FOR SUSTAINABILITY AND RESILIENCE

Together with natural and other working (sometimes called open space) lands, agricultural lands provide products such as bio-fuels and land for siting structures for solar and wind energy and water supply and for open space uses, such as carbon sequestration, flood control, recreation, and habitat restoration. "Working" lands generally means land that retains ecological value while producing food, fiber, or fuel.²⁹ These lands cover more than 90 percent of California and include rangeland, forests, woodlands, wetlands and coastal areas, grasslands, shrubland, farmland, riparian areas and urban green space.³⁰ infrastructure to manage localized flooding and recharge groundwater

A. OPPORTUNITIES PROVIDED BY WORKING LANDS

Studies have shown that these lands, particularly working agricultural lands, can be a source of carbon, contributing to greenhouse gas emissions and that they can also be a sink, reducing the amount of greenhouse gas emissions.³¹ In addition, as discussed above, current scientific thinking appears to be moving from a primary focus on providing habitat, not only for endangered species, to improving and providing ecosystem support for all species. Working lands provide many opportunities to support ecosystem restoration.³² At the same time, there is a call for sustainable agriculture which means supporting agricultural practices that go beyond current short-term productivity metrics and look to reducing adverse environmental and social impact with a recognition that "societies need to work towards an agriculture that is greener, cleaner, and provides better quality, more nutritious food that not only feeds people but improves their diet."³³

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B. CURRENT INITIATIVES IN CALIFORNIA RELATING TO WORKING LANDS

There is increasing interest in California on preserving and making use of working lands. The draft Water Resilience Portfolio discussed above includes a number of measures that would make use of working lands.³⁴ The State of California is also developing a plan for natural and working lands which would reduce greenhouse gas emissions from natural and working lands and "integrate climate and existing management objectives wherever possible, coordinating natural and working lands programs under a united approach that will move us toward our...