Executive Order N-4-23

State of California | March 10th, 2023

Executive Order N-7-23

State of California | May 17th, 2023

Facts on the Water Rights Question in the Central Valley Project

California Farm Bureau (CFB) | March 11th, 1948

Federal Reserved Water Rights and Groundwater: Quantity, Quality, and Pore Space

Congressional Research Service (CRS) | February 8th, 2018

Tribal rights to groundwater have not been legally established to the same extent as rights to other natural resources (e.g., surface water, timber, minerals). A March 2

Tribal rights to groundwater have not been legally established to the same extent as rights to other natural resources (e.g., surface water, timber, minerals). A March 2017 decision of the U.S. Court of Appeals for the Ninth Circuit upheld the rights of a California Indian tribe (the Agua Caliente band of Cahuilla Indians) to groundwater beneath the tribe's reservation in the Coachella Valley. In November 2017, the U.S. Supreme Court declined to review the decision; the case now proceeds to other phases that may partially shape this ruling's significance. This is the first case in which an appellate court has held that a tribe's "reserved" rights under the Winters doctrine apply to groundwater. Pursuant to Winters, when Congress reserves land for a reservation, it also reserves a right to water necessary to accomplish the purposes for which the reservation was created. For decades, tribal reserved rights for surface water have been established and have required settlements between the federal government (as authorized by Congress), tribes, and nonfederal users. Thus, some have raised concerns about the implications of interpreting Winters rights to include groundwater. This Insight explores three aspects of groundwater relevant to Agua Caliente: quantity, quality, and "pore space." The legal outcome may affect how groundwater is allocated among tribal and nontribal interests and may influence groundwater allocations at other federal reservations. The Supreme Court has not declared outright that groundwater is subject to the Winters doctrine, but declining to review the Ninth Circuit decision essentially upheld phase one of the three-phase case: a federally reserved right to the groundwater resource for the tribe. Phase two will address whether the tribe has the right to receive groundwater of a certain quality from the aquifer and whether it owns the pore space beneath tribal lands. Phase three will determine the quantity of groundwater to which the tribe is entitled, pursuant to its reserved rights. The outcome of phases two and three could have implications for expanding the scope of federal preemption of state water law. It also could affect how much groundwater is available for nontribal water agencies and water districts and those entities' ability to store water in an aquifer beneath federally reserved lands. Congress has authority over federal water law and could influence this legal framework.

Fixing the Flawed Colorado River Compact

American Geophysical Union (AGU) | June 16th, 2023

French Creek Flow Accounting Study

Scott River Water Trust | May 15th, 2020

The Scott River Water Trust (SRWT) has been working with adjudicated water-users in Scott Valley since 2007 to develop opportunities for stream flow enhancement through t

The Scott River Water Trust (SRWT) has been working with adjudicated water-users in Scott Valley since 2007 to develop opportunities for stream flow enhancement through temporary leases or long-term/permanent dedications of surface water rights. Under the seasonal Water Leasing Program, the SRWT contracts with voluntary agricultural producers to temporarily forbear all or part of their decreed water right(s) during the irrigation season in exchange for fair financial compensation. The purpose of the seasonal Water Leasing Program is to improve conditions for anadromous fish in priority stream reaches during critical life stages and time periods. The Siskiyou Resource Conservation District (SRCD) has been integrally involved with implementation of the seasonal Water Leasing Program since its inception and particularly with the monitoring component. Monitoring of seasonal transactions is generally limited to ensuring compliance with the lease terms and confirming stream response. However, in 2016 the SRWT proposed expanding the scope of effectiveness monitoring associated with the Water Leasing Program based on suggestions from Andrew Purkey and Rankin Holmes of the National Fish and Wildlife Foundation and their experience monitoring transactions in the Columbia River Basin (Holmes, et al., 2013). Under funding from the California Flow Restoration Accounting Fund managed by the National Fish and Wildlife Foundation, the SRWT contracted with the SRCD to explore several additional effectiveness monitoring techniques on French Creek including instream water level/discharge monitoring, wetted- perimeter analysis and alluvial connectivity surveillance. The purpose of this additional monitoring was to evaluate the applicability and effectiveness of these techniques to stream flow enhancement in Scott Valley and determine whether it would make sense for the SRWT adopt these practices into its programs. The specific components and objectives of the work completed on French Creek included: • Evaluate the instream effect of forbearance agreements performed by SRWT • Establish and maintain monitoring stations throughout French Creek to determine the downstream extent that returned water from various leases had on stream flow and temperature • Perform wetted perimeter analysis on French Creek to develop a relationship between instream flows and aquatic habitat conditions • Conduct periodic fisheries surveys through French Creek to evaluate the relative abundance of salmonids influenced by the transactions • Conduct periodic foot surveys through lower French Creek to establish the temporal and spatial connectivity to the Scott River This report summarizes the monitoring and analysis conducted by the SRCD during the 2018 and 2019 water leasing seasons under the French Creek Flow Accounting Study and provides conclusions related to the applicability of these methods to the SRWT.

Governing Nature: Bambi Law in a Wall-E World

Social Science Research Network (SSRN) | January 28th, 2021

Humanity has disrupted many of the fundamental processes that shape nature worldwide. Virtually no places remain unchanged. Many ecosystems have moved far from their hist

Humanity has disrupted many of the fundamental processes that shape nature worldwide. Virtually no places remain unchanged. Many ecosystems have moved far from their historic conditions and no longer support native species or traditional human uses. In the Anthropocene, a new geologic era dominated by the human impact on Earth, these problems will continue to get worse. In response, humans are intervening in ecosystems at a massive scale. This Article argues that, even as humanity engages in an unprecedented level of ecosystem management, existing environmental governance structures are ill suited to manage this new nature. Ecologists who focus on restoring ecosystems have begun to abandon efforts to recreate idealized historical ecosystems, recognizing that such efforts will fail. Instead, they embrace new approaches that acknowledge continuing human impacts and seek to shape impacted habitats in a way that benefits both human and other life. This Article examines the new ecological approaches, using their migration of purpose and approach to illuminate ecosystem management in the Anthropocene and the new obligations it places on environmental law. To sharpen this focus, the Article considers three case studies of managed ecosystems, detailing the extent to which humans are controlling nature. The case studies suggest that the existing literature seriously underestimates the magnitude of the questions society will soon face. The Article concludes that although we face the daunting prospect of reshaping the very fabric of nature, we lack the governance structures to decide what shape it should take. Society will need environmental law governance that can answer fundamental questions about humanity’s role in managing nature at all scales. This Article proposes several starting principles to encourage legal scholars to address this need.

Governor's Commission to Review California Water Rights Law Summary Final Report

State of California | December 1st, 1978

Governor's Commission to Review California Water Rights Law: Final Report

California State Water Resources Control Board (SWRCB) | December 22nd, 1978

The Final Report of the Governor's Commission to Review Water Rights Law, dated 12/22/1978.  The report contains the Commission's analysis of existing California water r

The Final Report of the Governor's Commission to Review Water Rights Law, dated 12/22/1978.  The report contains the Commission's analysis of existing California water rights law and recommendations for modifications. The Commission recommended 'modernization' in four areas:  water rights, efficiency in water use, instream uses of water, and groundwater.

Grand theft water and the calculus of compliance

Nature Portfolio (Springer Nature) | August 24th, 2020

Water crises constitute a challenge for humanity. Uncertain supply and growing demand are driving higher water theft, particularly by agricultural users who account for a

Water crises constitute a challenge for humanity. Uncertain supply and growing demand are driving higher water theft, particularly by agricultural users who account for approximately 70% of global use. However, research into water theft is underexplored in all disciplines. This paper provides a conceptual framework and modelling approach designed to improve understanding of both individual and institutional barriers to water theft. The framework and model explore how effective detection, prosecution, conviction and penalties can be assessed. Three case studies test the validity of our framework. Our findings suggest that while individuals and companies may be responsible for the act of theft, the phenomenon reflects a systematic failure of arrangements (political, legal, institutional, and so on). In addition, when regulators fail to understand the value of water, inadequate prescribed penalties increase the risk of theft. We invite others to test our framework, apply our model and engage in a wider conversation about water theft.