El Niño forecasts dampen hopes for Calif. water reforms

By Debra Kahn | 08/13/2015 12:58 PM EDT

While most Californians are hoping El Niño ends their state’s historic drought by bringing heavy rain this fall, there are a few who fear a soggy season will end a long crusade to reform water laws.

While most Californians are hoping El Niño ends their state’s historic drought by bringing heavy rain this fall, there are a few who fear a soggy season will end a long crusade to reform water laws.

"We already have some people hoping or even acting like El Niño is our savior and is on the way, which I think for us is a very dangerous way to look at this," said Lester Snow, who leads the California Water Foundation, a promoter of water policy reform and more spending on infrastructure. "It is literally a kind of paycheck-to-paycheck mentality, as opposed to looking at what some of the fundamental issues are."

The drought has greased at least one major policy shift: the enactment last year of a groundwater management law that will limit the amount of groundwater that can be pumped from aquifers. It also spurred voter approval of a $7.5 billion bond issue for water projects.


But a strong El Niño — the warming of the equatorial Pacific Ocean — could shift storms toward California this fall and winter.

Some fear El Niño will drown Gov. Jerry Brown’s 25 percent urban conservation mandate and swamp the policy reform push.

"I hate El Niño hype because it sends too much of a mixed message on conservation," State Water Resources Control Board Chairwoman Felicia Marcus told reporters. "From a messaging standpoint, it’s really rather challenging."

Jay Lund, who directs the Center for Watershed Sciences at the University of California, Davis, said: "It’s easier to make big policy during a drought than when you have water because it’s easier to get the political attention." Having the heavens open, he added, "just sort of psychologically takes some of the wind out of the sails."

There are a number of new proposals being discussed as candidates for state legislation or ballot initiatives. One is the effort to reform a wide-ranging 1996 ballot initiative, Proposition 218, that limited increases in local taxes and fees. The initiative has been an obstacle to local governments hoping to restructure their water rates to encourage conservation.

An April decision from a state appellate court found Proposition 218 prevents the use of tiered water rates that don’t accurately reflect the cost of water service, blocking the city of San Juan Capistrano from instituting its rates and sending a signal to other governments considering similar moves.

"We desperately need Prop 218 reform," said Peter Gleick, president of the Pacific Institute, an Oakland-based water think tank. "We have to have more clarity about the financial tools that water agencies can use to help manage water."

Gleick and Snow are also hoping for authority to charge water users a monthly fee to fund long-term efficiency, conservation, wastewater treatment, stormwater capture and other projects, similar to public goods charges that California electricity customers pay.

Appetite for water spending is particularly high right now. Snow’s foundation commissioned a poll last month that found 79 percent of respondents were willing to pay "a few more dollars" per month to fund water supply infrastructure. Sixty-two percent said they would pay up to $4 extra per month. That support could dissipate with a rainy winter, Snow said.

"If every reservoir ends up being full next year," Snow said, "the public might go on to other issues."

Rains swamped

There was a reform push that flagged at the end of 1977, when, after two years of drought, a weak El Niño helped deliver the state’s seventh-wettest winter ever recorded.

Before those rains, the water supply was shrinking — enough that Brown — who was then in his first term — in May 1977 convened the Commission to Review California Water Rights Law. The panel predicted that "by the year 2000 the state’s net demand for water may considerably exceed net dependable supply. Clearly, continuous attention to the allocation of water and to water rights law, as well as to expanding the supply of water for available beneficial use, will be necessary."

The commission made recommendations on improving water-use efficiency; encouraging regional groundwater management; preserving water in-stream for fish, wildlife and recreational purposes; and enhancing the certainty of water rights.

Some of the commission’s recommendations were implemented, but by the time the group’s report was published in December 1978, the state was back to its normal rainfall.

Lawmakers passed bills dealing with efficiency by encouraging water transfers and expanded the water board’s authority to prohibit illegal diversions, but they stopped short of tackling environmental concerns, groundwater management or water rights certainty, a 2005 paper by University of California, Hastings, law professor Brian Gray found.

The state Supreme Court pitched in with two key decisions in 1979 and 1980 that allowed regulators to limit the scope of water users’ rights, providing more certainty to rights holders.

Other reforms took years to gain traction, Gray pointed out. "The instream use and groundwater recommendations were controversial and ahead of their time," he wrote. The Legislature didn’t authorize dedicating water flows to environmental uses until 1991, and local agencies weren’t even permitted to manage their groundwater until 1992.

"If next year is an El Niño year and it becomes wet — we can’t afford to lose the impetus to fix things," said Michael Hanemann, an economist at the University of California, Berkeley. "There’s a lot to be done yet, and I don’t know whether we’ll lose interest."

Other issues that reformers hope to address: improving record keeping and accountability around water rights. There is also talk of strengthening last year’s Sustainable Groundwater Management Act to move up the mandated 2040 deadline for balancing withdrawals and recharge in groundwater basins.

"One of the sort of great ironies is that Jerry Brown, who had the foresight in the late 1970s to put together a commission on water, is now in a position to actually implement some of the advice in that particular report," said Barton "Buzz" Thompson, a Stanford University law professor and director of the school’s Woods Institute for the Environment.

"There are very few governors who have a third and fourth term to come back many years later and see what still ought to be done."

Will flooding be the next big concern?

Brown has already set a number of water policies in motion.

Most of the $7.5 billion in last year’s water bond remains to be spent, the groundwater law is being implemented, and the state released a five-year policy road map early last year that lays out goals for conservation, water recycling, storage, flood protection and watershed restoration.

"There’s a lot of things that are in play that will continue to move forward, regardless of any wet weather we potentially will get this winter," said Mike Wade, executive director of the California Farm Water Coalition.

Wade said he will oppose attempts to toughen the 2014 groundwater law.

"The idea that we can simply implement the groundwater act much more quickly doesn’t fit with the business model that agriculture traditionally has," he said.

No matter what the weather, water is going to remain a persistent problem for California. An extremely rainy winter could make flooding the new issue of the day.

"I think even a moderate amount of rain is going to make people forget the urgency of the problem," the Pacific Institute’s Gleick said. "Ironically, torrential rains will highlight other problems with our water system."

Reporter Anne C. Mulkern contributed.