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CHAPTERS AT A GLANCE |
1 Brief Overview of California’s Water Supply |
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ABOUT THE BOOK
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California Water II addresses the question, “Do we have enough
water?” and discusses key developments in the law: the
implementation of the historic Bay-Delta Accord, the crisis in the
Delta, settlement of critical issues on the Colorado River, global
warming, and the emergence of new water supplies such as water
transfers, conservation, recycling, and the conjunctive use of
groundwater.
Topics covered include:
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ABOUT THE AUTHORS
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Arthur L. Littleworth and Eric L. Garner, partners in the
California law firm of Best, Best & Krieger, specialize in water
and natural resources law, representing public and private clients
before administrative agencies, the California legislature, and the
courts. They have extensive experience advising local agencies and
addressing water matters on behalf of their clients in the planning
and negotiating stages of developing plans and projects.
Mr. Littleworth, highly regarded as an expert in California and national water issues, has long been listed in the Best Lawyers in America, and recently was named as one of the “Top 100” lawyers in California. He was appointed by the United States Supreme Court as a Special Master to hear the case between the States of Kansas and Colorado involving rights to the Arkansas River. That complicated trial began in 1990 and only now is the case drawing to a close. In 1977–78 he served on the Governor’s Commission to Review California Water Rights Law. He has tried a number of landmark water cases, including the representation of the State Water Contractors in the early Bay-Delta hearings, litigating the rights of the East Bay Municipal Utility District to obtain a supplemental water supply from the American and Sacramento Rivers, and acting as one of the lead counsel in stream system adjudications involving thousands of parties. Mr. Garner is a partner in the Environmental and Natural Resources Practice Group of Best, Best & Krieger, LLP. In November 2005, he became the managing partner of BBK. He has practiced water law for his entire legal career, representing clients in numerous surface and groundwater disputes in the Sacramento-San Joaquin Delta, Putah Creek, and American, Sacramento, and San Gabriel Rivers, as well as in the Santa Maria, Mojave, Antelope Valley, Chino, and Monterey groundwater basins. He has also worked overseas, writing water laws for the governments of South Africa, Trinidad, and Pakistan. Mr. Garner has been an adjunct professor teaching water law at the University of Southern California. In 2006 he received a California Lawyer of the Year award for his work on the Santa Maria adjudication. |
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PREFACE
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The first edition of California Water was published more than ten
years ago. At that time, I had some doubts about whether a book of
this kind would be well received. I knew there was a real need for a
practical book that dealt not only with basic water law, but also
more generally with water issues, water development, and the
relationship of water to the environment. Multi-volume treatises were
then available as they are now, but there was nothing that was easily
readable for the interested person. The visible need was not only for
the lawyer, but for the engineer, the planner, the elected official,
or the community leader who was interested in water, for those who
were looking for a concise, yet still comprehensive, story of
California water. Nonetheless, a book of this kind is hardly bedtime
reading, and I was pleasantly surprised when the first printing sold
out. And, later, even more heartened when people began to ask about
when we were going to put out another edition.
More than a decade later is a good time for the new book. The historic Bay-Delta Accord of 1994 has now achieved legal recognition in State Board Decision 1641 which was essentially affirmed in Justice Robie’s landmark opinion. However, the promise of implementation through the consensus approach of CALFED appears to be fading. The critical issues on the Colorado River, occasioned by disappearing surpluses and California’s use of more than its basic 4.4 million acre-feet entitlement, occupied almost a decade of sometimes bitter politics, negotiations, and litigation. But a settlement of those issues is now in place among the major California water users, the Bureau of Reclamation, and other Colorado basin states. Water transfers, conservation, recycling, and conjunctive use of groundwater have begun to emerge as major sources of supply. The ESA and CEQA have come to overshadow traditional water rights in the allocation of the state’s water resources. Global warming is much in the news, but the impact on our water supplies is still uncertain. A recent 2007 report by the Public Policy Institute of California asserts that our decades-old policy of trying to maintain the entire Delta as a fresh water source is no longer viable, suggesting a return to more natural saline conditions, and resurrecting the peripheral canal. In 2000, the Supreme Court issued its most important decision on groundwater law* since the 1975 opinion in Los Angeles v. San Fernando. The historic settlement in the Friant case restored flows in a reach of the San Joaquin River. And the legislature and the Supreme Court have now begun to tie the approval of future urban development to more secure water supplies. So while much of the history of California’s water development and the basic principles of water law that were included in the original edition of California Water are still present in this book, much material has been added to recount more than ten years of significant change. As noted in our first edition, we come to water issues from the perspective of a law firm that primarily represents public agencies which bear the heavy responsibility of providing reliable water supplies to a growing population and some of the most productive agriculture in the world. Still, we have tried to keep the book impartial, and to fairly represent the increasing importance of the environmental uses of water. The in-stream use of water and the consumptive uses of water frequently clash, and we have devoted significant portions of the book to this issue. At one point, it appeared that conflict might be on the wane as the Environmental Water Account and CALFED paid huge amounts of money into ecosystem restoration. However, recent dramatic declines of pelagic fisheries in the Delta, and diminishing support for the CALFED consensus approach, have led to renewed attacks on SWP and CVP Delta exports. Conflict, without a solution, is the condition as this book goes to press. On a personal note, I continue to believe that state efforts to create more storage are sadly lagging. The capture and storage of high flows, not needed for environmental uses, are vital to long-term reliable water supplies. Additional surface storage facilities become even more important as climate changes may substitute increased rainfall and fast runoff for the natural storage of water now achieved from mountain snow packs. Moreover, the increased use of groundwater basins to store water still requires the temporary use of surface storage facilities. Getting water underground is a slow process. High flows first have to be held somewhere before they can be percolated into groundwater basins. And storage facilities take years, if not decades, to get finally built. Storage facilities constructed now can help to head off the potentially disastrous impacts of a long drought, but storage facilities that are only studied and talked about now, though perhaps to be built later, cannot provide quick relief from drought. Previous generations planned for growth and to protect the state against drought. That surplus capacity has now been essentially used up. Without the same kind of foresight, drought will simply pit cities, farmers, and the environment against each other for the use of the scarce resource. We should have learned from the electrical crisis how devastating a shortage in a basic utility service can be. Yet a shortage of electricity is far more easy to remedy than a shortage of water. Electricity can be manufactured and purchased from outside the state. Water has only one advantage over electricity. It can be stored. This advantage should not be squandered. — Arthur L. Littleworth * City of Barstow v. Mojave Water Agency (2000) 23 Cal. 4th 1224. |
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