A Technology-Based Approach to Water Conservation in California

Abstract

I. INTRODUCTION II. CALIFORNIA WATER LAW A. Riparianism B. Prior-Appropriation III. CALIFORNIA'S APPROACHES TO EFFICIENT WATER USE IV. INTRODUCTION TO A TECHNOLOGY-BASED APPROACH A. Clean Water Act Approach B. Clean Air Act Approach C. The Clean Air Act Was Successful V. TECHNOLOGY-BASED STANDARDS AS APPLIED TO WATER CONSERVATION VI. IMPLEMENTING AND ENFORCING THE STANDARDS A. Implementation B. Enforcement VII. OPPOSITION TO A TECHNOLOGY-BASED STANDARD VIII. CONCLUSION I. Introduction In the coming decades, as already seen today, global climate change will impact hydrologic balances and water availability. (1) Among the scientific community, [t]here is a relatively firm consensus that arid and semiarid regions risk the net loss of stream runoff as winter snowpack diminishes and spring and summer evaporation increases each year. (2) As water becomes increasingly scarce, water use and management will have to adapt to these changing conditions. California water law is based on a combination of riparianism and prior-appropriation. These two doctrines assume regional water balances will remain relatively constant over time, but such an assumption is no longer viable. (3) As water becomes less available, water managers will have to change their assumptions and policies to better meet the needs of their water users. between senior users, junior users, and future claimants, as well as between consumptive and non-consumptive uses (such as environmental protection), will only increase. (4) In an effort to resolve these conflicts in uses and users, state policy must actively find new conservation methods. To date, most water conservation policy in California is voluntary, and the combination of riparianism and prior-appropriation does little to encourage conservation. This paper argues that California should take a new approach to water conservation based on the command-and-control pollution laws of the 1970s. California should adopt a technology-based approach similar to the clean Air Act (CAA) and Clean Water Act (CWA) to set new standards for water permits. A technology-based approach would require users to either adopt more efficient technology or use less water, thereby increasing conservation. It is also a flexible approach that typically considers cost-benefit analysis at some point in the process for determining the standards. The first section of this paper describes how California's system of riparianism and prior-appropriation functions, and explains why the system does not encourage conservation. The paper then looks at some of the conservation methods that California employs, ultimately concluding that those conservation policies are not adequate to deal with increasing water scarcity. The next section describes how technology-based standards work and how a technology-based standard can be applied to water conservation. Lastly, this paper addresses how a technology-based standard could be implemented and enforced, as well as responds to the potential opposition that a bill or regulation would face. II. California Water Law A. Riparianism In California, riparian water rights entitle owners of land bordering a stream to receive the flow of the stream undiminished except by the common right of all to receive a share of the (5) Permissible uses of water were essentially limited to fulfilling domestic needs, such as withdrawing sufficient water for drinking, bathing, and watering animals. (6) States adopted the riparian natural flow doctrine from England, the purpose of which was to allow all landowners along a river or lake a sufficient amount of water for their daily needs. (7) The natural flow doctrine thereby limited use of water to ensure that each landowner along the river would receive a reasonable amount of water. …