Episode 06: California Water Law 101
“Please vote on climate, environmental, and water issues. It is not just the presidency that matters, it is the senate as well as state elections. All of that has a whole lot to do with the judges we get. Getting good judges who understand Western Water issues is vital to the broader political efforts to address water problems and having good laws on the books.”
karrigan Börk
A conversation with University of California Davis School of Law Professor Karrigan Börk about the CA Water Rights, the Sustainable Groundwater Management Act, drinking water, and federal vs. CA controls over water.
guests on the show
Dr. Karrigan Börk
Professor Karrigan Börk graduated with Distinction and Pro Bono Distinction from Stanford Law School in 2009, and completed his PhD dissertation in Ecology at UC Davis in September 2011. Professor Börk's publications run the gamut from the definitive text on the history and application of California Fish and Game Code Section 5937 to a hatchery and genetic management plan for spring-run Chinook salmon. He is currently examining legal and ethical issues in ecological restoration and local governance issues in ecosystem management.
TRANSCRIPT
Mallika Nocco
Welcome to Water Talk from the University of California Division of Agriculture and Natural Resources. I'm Dr. Mallika Nocco, a cooperative extension specialist in soil plant water relations and irrigation management.
Sam Sandoval
Hi, I’m Sam Sandoval. I'm faculty and an extension specialist in water resources.
Faith Kearns
And I'm Faith Kearns, the academic coordinator for the California Institute for Water Resources.
Mallika Nocco
In today's episode, we are tackling California water law with our guest Dr. Karrigan Börk, who is a professor, a new professor, at the University of California, Davis School of Law. He has a delightful background with a PhD in ecology, and that just really gives him excellent insight into issues involving species conservation and water rights because he has both his law background as well as a background in science.
Faith Kearns
Hi, Karrigan, thanks so much for joining us. So your path is really intriguing. Can you tell us how you went from ecology to law and how that helps you with insights regarding water law?
Karrigan Börk
Sure. First, thanks for having me here. Such a pleasure to be a part of this. And I think this podcast is such a great idea and a great way to reach out and talk to people about water, which is always important in California and this seems like a great opportunity. So thank you so much.
When I first started, I grew up thinking I was going to be a conservation biologist, fishing was kind of my entre into this and I've been doing that since I don't know, I was two or three. I have a little trout tattooed on my shoulder like, I'm pretty hardcore, I guess, on the fishing front. Summer after my sophomore year of college, I went to Washington DC and worked for Trout Unlimited and came in with a science background thinking I was going to do science stuff, but got thrust really quickly into the policy side, working on some gravel mining issues, working on some Bureau of Reclamation issues there, the big agency that builds dams in the western part of the United States. I realized pretty quickly that no matter how good your science, if you don't have a good legal framework, that science isn't going to change what's happening on the ground.
I thought, well, maybe I can kind of do both of those things. And I really, from that point on, I knew that I wanted to do both the science side and the legal side. And that science background has been really helpful because it puts me in a role where I can translate the science so that the lawyers understand it and the law so that the scientists understand - that’s on a good day. On a bad day, I just make a mishmash of everything. It’s kind of big stew of mess, but, ideally we're kind of translating back and forth and it's been a great role for me to be in.
Sam Sandoval
Karrigan, as many of us are transplants to California, we're always looking to jumpstart understanding some of the systems here, and one of them is the water law system. So could you talk to us about water rights systems in California? So water law in California 101?
Karrigan Börk
We’ve got to back up a little bit. One of the neat things about water law and especially water law in California is that it's, you know, if you think about property law or criminal law, you've got 1000 years or 2000 years of legal history there. And in California, we've only got 150, 170 years of water law history. And that means that it's a really young field. It's a really dynamic field. And it also means we can back up a little bit and take a historical run at this, then I think that helps people understand things pretty well.
So if you imagine, California becomes a state 1850 all the way back. All of a sudden poof California is a state and when you're a new state we have literally no law on the books. There's no written law for the state yet. There's no criminal law, there's no civil law. There's no like, how do we make a will, there's no how do you buy land? How do you buy a horse? Is it illegal to shoot somebody? How old will you have to be to drink, none of it exists. So the legislature has to write a whole bunch of laws really, really fast. The legislature isn't very good at that. That's just too much to ask them to do. And so what they did, this California Legislature and it was pretty common at the time, they brought in English law and said, we're just going to bring all of English law and make that California law, except for the parts that already conflict with existing US federal law or with laws that we've passed. So like no kings, for example. And no hereditary passing of titles and no land passing only to the eldest child. So we get rid of all of that stuff because it conflicts with existing law. But to the extent it didn't exist, it didn't conflict, we brought in English common law.
That meant we brought in English water law and the English system was called riparianism. And these are rights based on the land that you own. And so if you own land that is riparian, meaning it touches a water body, if it touches a stream or a lake, you got the rights to use that water. There’s limits on those rights and it gets pretty technical pretty quickly. But generally, you get to use that water for reasonable purposes on your riparian land, use it in a reasonable way, divert it in a reasonable way. And so that was the core historical right that we created at the time. And there was not an explicit water right, the legislature didn't pass a water right to make that, they just brought in all this English common law that worked really well in England where things were wet and the country was relatively flat, and there wasn't a huge variation in how much water you got. It actually worked really well in eastern US where places get rain all year long, and where lots of places butt up against water.
So if you're in Kansas or Iowa or Missouri, you can grow corn or wheat without any irrigation. And the people who are close to river could use that water. But if you weren't, you could still use your land. It's fine. But there's some limits to those riparian rights. So you can't store water with riparian right. Generally, you can't store for more than 30 days, you can't use water outside of the watershed, you can't use that water on land that's not riparian to the river or the stream or the lake. So those are kind of your basic limits. And because of those limits, all of a sudden, we're trying to bring that system into California. And if you think about the way water works here, we don't get water, these recent rains not withstanding, for like six months out of the year. So if you can't store water, you’ve got a big problem. If you can't move water from the river or the lake to another place, you can't farm that land and you’ve got a problem.
So there's all kinds of problems that we run into trying to apply these riparian rights to California. And so California is originally, the miners in fact came up with this new system of appropriative rights that supplemented the riparian rights and these appropriative rights were not rights based on what land you own. So they weren't ownership-based rights. They were use-based rights. This is whole John Locke idea that you go out and you find wild nature and you put your effort into it. And because you put your effort into it, it becomes yours. You go out you mine the gold and that gold becomes yours because you've worked for it. Or you go and you shoot a deer and because you've shot this deer, you've put your blood, sweat, and tears into the deer, the deer is yours. Same idea with the water, you go out, you build something to appropriate that water, you take, it becomes yours. So that's a use-based right and that right lets you store water. It lets you take water out of the watershed, move the water around, let’s you use it on land that's not riparian land, so it's a much more flexible right. So really strong right that's well adapted for California.
California ends up with these two different systems, riparianism and appropriative rights at the same time. Riparian rights work well in some places, appropriative rights work well in others, but those rights don't get along. And so a lot of California water law and a lot of the history of California water law is resolving the conflicts between those two different water rights systems. As a general matter, riparian rights win over appropriate rights, so upper riparian rights get their water first. But those rights are limited to the natural flow of the river. And so if you think about the American River or the Sacramento River or Putah Creek, the natural flow would be really low during the summer when we're not getting any rain. And so a lot of the water that's in the river during the summer is water that the appropriators can take and riparians can't. And it gets, again, pretty technical about figuring out what's natural flow, what's coming out of the dams. And so you end up really having big struggles between the riparian rights and the appropriate rights. And there's some other minor rights but I think those are the two main kinds and if you get those then you’ve got a really good handle on general rights in California.
Faith Kearns
And to complicate things even further, currently, water rights govern surface waters and groundwater is considered separately. And now we've had this big groundwater management act passed in, I think 2014, but you can correct me. And I'm just wondering if you can talk to us a little bit about groundwater management right now.
Karrigan Börk
Just talking about California here. So for groundwater, we have overlying rights, and those overlying rights belong to the overlying landowners. If you have land that's above groundwater, you get an overlying right to use that groundwater. And just like we saw with riparian rights, those rights have restrictions. So you can only use the water reasonable ways and reasonable amounts for reasonable purposes and only on the overlying land. You can't take it outside of that groundwater basin and use that someplace else. Then we also have, and it's confusing because it's the same name we use for the surface water right, but we have appropriative groundwater rights. And those are the people who come in, pump water out, and put that water to a beneficial purpose. This is the gain it by using it kind of approach. And so we have a way of creating groundwater rights for people who don't live over the groundwater. And those are the appropriative right holders. Those are the ways you get the right to use the groundwater.
Kind of the complicating factor, I think for both of these things, is that there are a lot of inherent limits on surface water rights. If I want to take water out of the stream, there are things that make it so I have to leave some water in that stream. I have to leave water in it for downstream riparian right so other rights can limit the amount of water I take out. Water quality can be a limit. The line the solution to pollution is dilution - is true. If you take all the water out and all you're putting in is contaminated water, you run afoul of water quality law pretty quickly. But we also have a whole bunch of other California law, so things like the California Endangered Species Act or the California Public Trust Doctrine. There's some minimum flow protections, all those things act as limits on how much surface water we can use.
But for a very long time, we had no similar limits to groundwater use. So if you wanted more groundwater, the only limit was how deep a hole could you drill and how big was your pump to pull water out of the ground. And that meant that when we had droughts, and we cut back on how much surface water we were using, people didn't stop using water. And so we pulled a whole lot more water out of the ground and use that water instead. But eventually, it's really started catching up with us. Over pumping groundwater reduces the amount of groundwater we can store. It creates kind of an unhealthy reliance on water that isn't going to be there in the future. There's a whole host of impacts that we can we can talk about.
And so during the last big drought, the legislature took advantage of that kind of huge crisis to pass the Sustainable Groundwater Management Act, which creates almost a federal system where the state acts as a backstop and lets local groundwater management agencies make decisions about how they want to use their groundwater. The state imposes requirements about how that groundwater is used and has to be used in a sustainable way. And you have to avoid a list of negative impacts from using that groundwater so that you're hopefully not overusing it. But you have local groundwater management agencies that are writing plans that the state then approves.
And we're in that process right now, actually, the state's looking at those plans to decide if those plans are going to achieve the goals of Sustainable Groundwater Management Act. And this is the first time in California that we put the limits on groundwater use the way we've always regulated surface water use. So it's a really exciting time. It's also going to be a really interesting time, because we don't know very much about doing this yet. And I think things will get a little bit spicy in the near future as we figure this out.
Sam Sandoval
You were mentioning that we tend to focus a lot on water quantity. But we have also the brakes, the water quality, the environmental protections, that they are putting some of those limits. So how are point and nonpoint pollution governed in California?
Karrigan Börk
California has a pretty aggressive approach to the Porter Cologne Act, which creates, essentially gives the power to the State Water Board to regulate water quality in California. And so the State Water Board and then the regional water quality control boards all address both point source pollution and nonpoint source pollution. And they exist kind of like how SGMA has a central state backstop and then a whole bunch of local agencies that have to work to achieve the SGMA goals. We have a similar approach with the Clean Water Act at the federal level. So we have these federal backstops about how you're supposed to manage water and then all the states get to, if they want, implement their own water, kind of Clean Water Act versions, to meet the federal requirements. So in California we do that through the Porter Cologne Act and it fulfills our federal Clean Water Act requirements, also the Coastal Zone Management Act requirements. There are some requirements with the Coastal Zone Reauthorization Act that came out a couple of years ago. So we fulfill all of those requirements through Porter Cologne through the State Water Board and through the regional water boards.
Maybe a good way to think about this is to think a little bit about the Delta and the state's recent efforts to redo the Bay Delta Water Quality Control Plan. The State Water Board is the one that's working on this. They've done the San Joaquin side, they're getting ready to do the Sacramento side. But if you go in and you read the documents for the San Joaquin side, the state is using a whole bunch of different authorities to regulate the amount of water that flows through the Delta. The state is the one that issues the permits for appropriative rights. They don't have to issue permits for riparian rights. But there are some reporting requirements for those riparian rights. So they have some control directly on the water availability on the water right side, but a lot of the controls come in through this kind of more amorphous power that they have. So if you look at the documents and the way that they've established these limits on the San Joaquin River, they rely really heavily on their public trust requirements.
There's a Public Trust Doctrine in California that says the state is supposed to protect particular resources for us, for you and me and everybody listening and everybody not listening, right, the public of California, we have certain rights and the state has a responsibility to protect those things for us. And so that gives the state power to regulate water quantity, water quality, to protect species, to do all of those things. There's the California Endangered Species Act. There's a whole bunch of listed species that live in the Delta or pass through the Delta. And so the state has to protect the Delta and has authority to do that under the state Endangered Species Act. They have the Porter Cologne Act, which again we talked about is a water quality act. And so they're able to regulate discharge into an amount of flow to say control salinity levels in the Delta.
We could keep going and going, there's a whole bunch of different authorities, but those are there. They're kind of three big ones that they rely on. And they say, hey, we've got this whole pile of authorities that give us power to do things. And we're going to take those authorities and we're going to go out now and create this plan for the Delta that says we have to have this much water flowing to the Delta. And it has to be this claim, and they figure out, relying on all the great science everybody's doing, what those numbers should be. And then eventually, they may have to rein in water rights and they have to change the flow, like when people are allowed to release water from dams or not to release water from dams, all of those things to accomplish those goals that they've set through this water quality control plan. And to do that, they use all of these amorphous authorities that they have that are floating out there. So it's a huge, glorious mess to make this come together. But if it cooks long enough, hopefully you get something that hangs together, it makes sense.
Faith Kearns
Just thinking about things like use it or lose it when it comes to water rights and some of these other kinds of issues, I'm just wondering about water conservation overall, and sort of the crux of the question of thinking about how we conserve water in the face of these many legal complexities.
Karrigan Börk
The use or lose a piece is really, really interesting. And if you roll back for a second to the 1850s, I'm thinking about these miners who are up there working their claims and trying to get the gold out of the Sierra. Think about if somebody has a little mining claim they're working and that person leaves for a while. You can't just jump on Facebook and see where they are. You can't call them on their cell phone, we have no idea if you're a miner and your neighbors gone for a week, you don't know if they've left or if they got the plague and died or like what happened. And so we came up with a system where if someone leaves and they're gone for a long enough period of time, they would lose their mining claim because they aren't working on it. And again, it goes back to that same kind of John Locke approach, especially early America, we wanted land to be used in a productive way. And if it's not being used that way, it somehow offends our deep sensibilities. And so we created this property system where when someone's not working their land, someone leaves or someone disappears, at some point, that land becomes available for other people to use again, and the water followed the same pattern.
If someone had a water right, and they stopped using it, that water is just being wasted, we don't want that water to go to waste, or that was the thought anyway, and so that water became available for other people to use after five years generally. And so that right or that requirement has stayed attached to our water rights, not for the riparian rights because those aren't based on use, those are based on the land you own. And so you always have that riparian right. But for the rights that are based on use, those appropriative surface water and appropriative groundwater rights, if you don't use them for a set period of time, those rights go away. And that does kind of create an incentive not to conserve water. If you use less water in a given year, because you're able to by using more efficient irrigation equipment or by irrigating different times, or growing a different crop, then your neighbors might come in and say, hey it looks to me like you don't really need that water. And so either you don't use it for a set period of time and then someone's also able to use it, or someone else could argue you're not using it in a reasonable way when you're using the larger amount and then someone else comes in and takes that water.
Sam Sandoval
Truly putting you a little bit on the hot spot or not. Is clean drinking water in California a basic human right? And do you think it is enforced in this way? I mean, we have a lot of environmental justice issues around access to clean water. So what are the legal systems in place that allowed for those in justices? Or how can we address that?
Karrigan Börk
Yeah, it's a great question. And especially the question about do we actually have legal systems that address this and that get us to the point of having a human right to water. So, as you may know, California law AB 685 declares that every person in the state has a right to clean, safe, and affordable drinking water. So we have that in legislation that was passed in 2012, kind of as part of the last big drought saying, yeah, we have this human right to water. But if you go farther back, there's a whole bunch of declarations in California, saying yes, we have a human right to water. We in California recognize the human right to water, the UN has recognized the human right to water for 20 or 30 years at this point. So we have decades and decades of recognizing human rights to water. I think what's different now in California is that we're actually finding ways to not just say that there's a human right but to protect that human right and to actually deliver on the promise that's inherent in that human right to water.
So in 2019, there's a new bill, Senate Bill 200, that passed that has funding out there to help achieve this goal. So there's money following the original recognition of a right. And then there are, we have government agencies that are working on this right now, trying to find ways, well some of the places that we see problems with this human right to water in California are small Central Valley towns, where you may not have a whole lot of people on a water system. And if there's not a lot of funding for that water system, if they're very groundwater reliant, that groundwater quality can be highly variable, and in bad years it gets bad. And it gets to the point where they're not getting clean water, they're not getting safe water to drink, but they don't have the money to go out and drill a new well. If you're serving 100 people that's big for some of these, these really small water districts. If you're a school and your school is your own water district, and that's it, you're not gonna go drill deeper well, you don't have the money or the technology or the know how to do some of these things.
The state's finding ways to wrap some of these smaller water districts into bigger districts that have more money, and require those larger districts to fund and deliver water to the smaller districts. As you can imagine, the bigger districts don't love this, but it's a really interesting part of California water right now, and figuring out how we deliver on that. And California is in a vanguard position here. There's only a couple of countries that are doing this. There's a number of countries that recognize a human right to water. Very few that have really started delivering. South Africa is a good example where they're actually ensuring that people get this water through community water spigots and providing a set basic amount of water to everyone every day. But California is, I think it is safe to say, is in the vanguard of figuring this out. UC Davis has an environmental water justice clinic. And it was on hiatus this past year, but we've just hired a new director for that. And we'll be starting up in the fall. And so we have students who will actually be out working on this issue with the communities in the Central Valley, with the State Water Board, really ensuring that we're delivering on this long standing promise.
Mallika Nocco
President Trump has complained about river flows out to the Pacific Ocean in California, calling it wasted. How much power does the federal executive branch have when it comes to water distribution in California beyond distribution through the Central Valley Project?
Karrigan Börk
We're gonna find out (laughs). We’re, again, spicy is I think a good way to describe it. It's a pretty exciting time in our relationship with the federal government over water issues. The complaints and the fighting about the water flowing out to the ocean through the Delta, a lot of that comes down to the Central Valley Project and the State Water Project, which are the two biggest water projects in the state. And most of the big dams that you think of in Northern California, or most of California really are part of one of those two projects. The overall idea is that we have the federal Central Valley Project and California's own State Water Project, it's easy to remember because it's called the State Water Project. Those two projects store water in Northern California, a lot of times in higher elevation areas or in rim dams around the Central Valley, and then release that water during seasons when there wouldn't normally be very much water in the rivers and send it down the rivers through the Central Valley into the Delta, across the Delta pumps, and those pumps pull the water back out of the Delta, and then distribute it to the Central Valley and down to Southern California.
That's kind of our rough system. One of those is a federal project. Again, one of those is a state project. They share the rivers, they share the Delta. And so the operations between those two projects have to be coordinated. And so the Bureau of Reclamation, which runs that Central Valley Project works with California's DWR to create a coordinated operating plan and they renew that plan every couple of years. And when they do that, it has to go through certain federal environmental reviews. So we make sure it's complying with the federal Endangered Species Act, and we make sure it's complying with NEPA, the National Environmental Policy Act, and it goes through a big review process. And that happened over the last year, year and a half, and the federal government said that we could increase the amount of water being taken from the Delta without harming the listed species based on some mitigating actions that they thought would be enough to protect those species. There's been a lot of discussion about whether those are enough. It seems pretty clear that we don't really know. And we're, to the extent that you really look at it, it seems like we're putting a lot of risk on the future of those listed species in the Delta. And we don't know if the mitigation that is outlined in the plans is going to be enough.
Nevertheless, the federal government okayed them. And what's always happened in the past for California's own Endangered Species Act is California has gone along with what the federal government says. So California's Endangered Species Act says, hey, if the feds say it's okay, under their Endangered Species Act, we'll just go ahead and say, yeah, we're fine to do that under our Endangered Species Act. That didn't happen this time. So all of a sudden, we have these federal approvals. We have the state saying, actually, we don't think that's enough. And so the state sued the federal government alleging a violation of federal law saying the state didn't comply with the federal Endangered Species Act, didn't comply with NEPA. A whole bunch of environmental groups sued saying the same thing. And then the state added on to those claims, a claim that the federal government was violating California's own Endangered Species Act.
That's the first time we've made that claim. People who are kind of proponents of that view suggest the federal government has to comply with our Endangered Species Act, but the courts haven't ruled on that yet. And so that's where we are right now. There's a preliminary injunction that just got issued, this is either this week or last week, requiring that the federal government not use the new plan, stick with the old plan, because the court thought it was likely that California would win on at least some of its claims, but we don't know what's going to happen with that claim that the Bureau of Reclamation, the federal government, has to comply with state law. If they do, that really limits federal power over water flows in California. And if they don't, then it doesn't. So stay tuned, I guess. And we'll see where that one goes.
Mallika Nocco
How can we as citizens in California who are interested in water, how can we support your work, and how can we support new water lawyers in California?
Karrigan Börk
Great, I appreciate the question and the impetus behind it to work on these things. There's a couple different things. One is please vote. Please vote on climate issues, on environmental issues, on water issues, pay attention to those things when you're deciding who you're going to vote for. It's not just the presidency that matters. It's the Senate, it's the state elections. All of that has a whole lot to do with what judges we have. And so getting good judges who understand water issues, who understand particularly Western water issues, is vital to the work that we do, that very specific work that we do as water lawyers and broader political efforts to address these problems, making sure we have good laws on the books.
More broadly, people should be using our natural places, should be out on our waterways, go rafting, go kayaking, go hiking, go take pictures of birds, fish, hunt, embrace these places, be a part of these places. And then kind of follow that passion into work on restoration projects and to work with the nonprofit's that are doing really cutting edge environmental work in California. We're only going to protect these places to the extent that we care about them. And we care about them when we use them. So go out there and use them and be in nature and bring in people who don't normally do that so they can have those experiences too. The more people we have using these places and caring about these places, the better job I think will do a protecting them in the long term.
Mallika Nocco
That was such a great sentiment. I wasn't sure where you just go with it, but I like where you went with that.
Thanks for listening and join us next time on Water Talk.