1. 1 Overview of Water Law and Policy University of San Francisco School of Law Water Law Class 1 January 13, 2010 David Sandino Chief Counsel California Department of Water Resources (916) 653-7084 dsandino@water.ca.gov

2. 2 Why is the study of water law and policy important? Water is an essential resource Water is a limited resource Water regulatory system is complex Disputes over water are difficult to solve and are not likely to get easier in the future Educated leaders and public are important Opportunities to practice water law continue to grow

3. 3 Forces Driving California Water Disputes California’s population growth California hydrology Growing environmental demands Stakeholder disputes: urban, agriculture, environment, recreation and energy Disputes among overlapping federal, state and local governments

4. 4 California’s Population Growth California’s population is growing rapidly 1970-----20 million 1980-----24 million 1990-----30 million 2010-----38 million 2020-----42 million?

5. 5 California’s Water Balance Summary (DWR Bull. 160-05) Average Total Supply: 195 MAF Average Total Use: 201 MAF In dry years, insufficient supplies to meet total demand, creating competition for limited supply In dry years, supply has been met through demand reduction, water transfers, and groundwater overdraft

6. 6 California’s Hydrology 2/3’s of the water supply falls in Northern California 2/3’s of the population lives in Southern California Hydrology varies from year to year, season to season, and region to region

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8. 8 Examples of Environmental Demands Water dedicated for in-stream flow Water dedicated for wildlife refuges Federal and State Wild and Scenic Rivers Acts San Francisco Bay and Sacramento-San Joaquin Delta outflow requirements Water dedicated under Central Valley Project Improvement Act

9. 9 Overlapping Jurisdictions: Federal Authorities Bureau of Reclamation: Operates the federal reclamation projects, including the Central Valley Project and Klamath River Project US Environmental Protection Agency: Responsible for water quality protection and veto authority under Section 404 of Clean Water Act (CWA) Army Corps of Engineers: Responsible for Section 404 permitting under CWA and flood control management, including dam construction

10. 10 State Authorities State Water Resources Control Board (SWRCB): Responsible for both water rights and water quality regulation Department of Water Resources (DWR): Operates and maintains State Water Project and has general water resources management responsibilities Department of Fish and Game (DFG): Responsible for fish and wildlife management, including species protected under the California Endangered Species Act (CESA)

11. 11 Local Authorities Cities, counties and special districts have local water delivery authority: Metropolitan Water District, City of San Francisco, East Bay Municipal Utility District, Contra Costa Water District, Westlands Water District, Kern County Water Agency, Tulare Lake Basin Water Storage District, San Diego County Water Authority, Imperial Irrigation District, etc. (See CDWR Bulletin 155-94 for comparison of water agencies)

12. 12 Klamath River: Interstate River Disputes “Spilling out of Klamath Lake in southern Oregon, a huge shallow apparition cradled between mountains and desert, the river drops across the California border and bends its way westward toward the coast. Then it dips suddenly southward toward populated California, and, as if recognizing covetous intent, immediately doubles back on itself and flees to Oregon through the plunging topography of the Siskiyou Range.” Marc Reisner, Cadillac Desert

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14. 14 Delta Watershed Facts 40% of California Surface Area Accounts for 40% (30 MAF) of California’s average runoff 2/3 of California’s water consumption Consists of 14,000 water rights holders including SWP and CVP The Delta itself, the point of convergence of the Sacramento and San Joaquin River, consists of hundreds of islands and waterways

15. 15 Diminishing Sierra Snowpack % Remaining, Relative to 1961-1990 (Hanemann et al., 2004)

16. 16 Expected Storage Capacity Impacts from Changes in Runoff A 3 o C increase in temperature is projected to result in an increase in snow elevation of 1500 feet and a 4 to 5 MAF decrease in Sierra snow pack 13.5 MAF Reservoir Storage 11 MAF Reservoir Storage 14 MAF Snow Pack Storage

17. 17 Basic Water Measurement Terminology Quantity: Acre-foot or AF. An acre-foot is the amount of water that will cover one acre of land one foot deep Flow: cubic feet per second or cfs. One cfs is the flow of one cubic foot of water past a given point for one second Conversion: 1 cfs flow for 24 hours=1.98 AF

18. 18 Quantity and Flow Examples 1 AF is the estimated amount a family of 5 will use in a year or about the amount of water to cover a soccer field 1 foot deep Shasta Dam stores 4.5 million AF Oroville Dam stores 3.5 million AF Folsom Dam stores 1.0 million AF Delta annual outflow average: 27 million AF Delta average winter outflow: 32,000 cfs Delta average summer outflow: 6,000 cfs

19. 19 Water Rights Characteristics Overview Water is a public resource that belongs to the people of the state (Wat. Code §102.) Individuals may obtain a private right to use water (called “usufructary right”) Use is limited to reasonable and beneficial uses (Cal. Const. Art. X, sec 2.) Waste of water is prohibited (Cal. Const. Art. X, sec 2.) Water rights may be enforced in court or before SWRCB

20. 20 Surface Water Rights In the US, there are 2 basic methods of allocating surface water: riparian and appropriative systems. California recognizes both systems in a hybrid system known as the “California Doctrine”

21. 21 Riparian System Originated in Great Britain under English common law Spread to the East Coast during the colonial period California adopted English common law and riparian system when it was admitted into the union in 1850

22. 22 Lands With Riparian Rights Parcel must be contiguous to rivers, stream, lakes and ponds Adjacent water need not be navigable Lands severed from a riparian parcel do not have riparian water rights If lands are reunited, reunited parcel does not have riparian rights (Anaheim Union Water Co. v. Fuller (1907) 150 Cal. 327)

23. 23 Characteristic of Common Law Riparian Rights Right to reasonable and beneficial use on riparian parcel only Use on non-riparian parcels prohibited Rights are part of land ownership for riparian parcels No governmental permission is needed Rights generally cannot be lost by non-use Riparians share in shortages of water

24. 24 Criticisms of Riparian System Water supply limited to riparian parcels Not well suited for California with many parcels that are not riparian Not well suited for dry regions Rights are not quantified, which creates uncertainty