COMMENTARY: California Water Worries

Big Solutions are Needed to Head off a Serious Water Crisis

California is in the midst of a water crisis: reservoirs are currently at a fraction of their average capacity for this time of year, aquifers are dropping to new lows, State Water Project deliveries (which serve 25 million Californians) are projected to meet only fifteen percent of the amount requested by local agencies and the San Joaquin-Sacramento Delta (the "Delta") is in an environmental (and litigious) quagmire due to the need for water not only for Southern California but also for the Delta smelt, several species of salmon and steelhead. With little precipitation, inevitable population growth, and significant use by agriculture, more burdens are placed on a diminishing resource. Impacts related to global warming and the long political paralysis regarding various aspects of water rights and transfers also exacerbate the gap between supply and demand. Without new supplies, decreased consumption, or some combination of the two, the state may not be able to provide adequate water to meet existing and future needs. Both long-term and short-term solutions are necessary.

Avocadoes are a thirsty California crop, and will die if not irrigated.

Given this existing imbalance, the public and decision makers must decide the most deserving users of water in order to allocate this resource. Is it an endangered fish species facing possible extinction due to pumps exporting water to 25 million Californians? Is it the homeowner watering her lawn? Is it a new water-efficient development that uses water at a much lower per capita rate than existing users? Is it an agricultural use forced to fallow expensive crops, such as avocado trees, that will die if not irrigated? Developers, environmentalists, and decision makers have yet to confront or resolve the issue of state water allocation and it is a critical component of resolving the supply/demand imbalance.In addition to allocation, fixing the supply problems long term must be addressed now since most require significant lead times to implement. New water storage areas and reservoirs allow the capture of floodwaters and runoff during periods of heavy precipitation, but require years of environmental analysis, approvals, and construction. The imperiled Delta ecosystem needs new conveyance/delivery mechanisms that would enable water to move across or around the Delta absent loss of smelt and other endangered fish species, but such systems require a similarly lengthy approval process. Other long-term solutions, such as waste-to-tap plants, their spreading grounds and distribution infrastructure, require all of the above, including large capital expenditures, but also demand strong political will to convince the public that waste-to-tap provides safe and adequate water quality. Even waste-to-landscaping requires significant capital investments in infrastructure, as well as commitments by customers to use more expensive recycled water. Additional solutions include desalination plants, and water quality improvements for existing groundwater that does not meet public health standards due to contamination.

Public awareness of the water supply problems facing California is low. Compounding this problem is the fact that Water Supply Assessments ("WSAs"), Urban Water Management Plans ("UWMPs") and other planning documents required to forecast available water may be grossly inaccurate due to the problems mentioned above. Most of these documents do not yet reflect the Delta and Colorado River cutbacks, drought, and State Water Project changes that are occurring. Current economic conditions have delayed the planning process for new projects, thus further keeping the water crisis out of public view since water supply would normally be addressed during the project approval process. Although UWMPs will be updated next in 2010, the changed water situation must be confronted well before then. For instance, the Metropolitan Water District of Southern California draft Water Supply Allocation Plan ("WSAP") includes a formula to allocate supplies to the member agencies. These agencies must likewise respond and adopt to these reductions.

The shortage must thus be recognized, the recipients of water resources determined, and future supplies increased. In the interim, while these decisions are being made, short-term solutions are necessary such as a statewide regulatory plan requiring mandatory conservation for all users, including a tiered rate pricing structure that charges higher rates to customers that use more water. When customers are charged for usage that exceeds a baseline level, water districts find that price increases result in greater conservation. Yet, even conservation produces winners and losers: residents fear a tiered rate structure will significantly increase the expense of a now-relatively cheap resource and developers fear that the cost and burden of water conservation efforts will fall squarely on their shoulders even though new developments now provide extensive water efficient designs. Both new and existing development must bear the burden of reduced water use.

California customers may need access to recycled water, or education on forgoing lawns altogether.

For agricultural uses, water conservation may include fallowing land, less water intensive crops, and improvements in methods of irrigation. Urban conservation measures include irrigation/landscaping improvements, such as drip irrigation, new incentives for customers to use purple water, incentives for the removal of lawns and/or replacement with native, drought tolerant or non-water consuming landscaping, as well as watering systems triggered by weather conditions. For example, the San Bernardino Metropolitan Water District pays for half the cost, up to $200,000, to install controls at parks within its service areas as part of its "Weather Based Irrigation Control Programs." The technology uses daily weather information to meet the needs of landscaping and reduces water demands substantially. Such measures could be adopted in omnibus water legislation. The California Air Resources Board recently released draft performance standards as a response to global warming and the same type of regulatory measures aimed at increasing, enhancing, and protecting water resources could similarly be imposed statewide.

The gap between water supply and demand will only increase unless necessary steps are taken to ensure supply and demand balance. Conservation measures, a tiered rate structure and new regulations to address existing development must be implemented now. Solutions for the Delta must be agreed to and funded, as well as measures to augment supplies, including increased storage capacity. Decision makers must implement these short-term, long-term and regulatory changes to ensure an adequate and reliable water supply.

RYAN LEADERMAN is an associate and LINDA BOZUN a partner at law firm DLA Piper US in Los Angeles, specializing in land use planning, zoning, entitlement acquisition and protection, and due diligence.