Ringside: Ten State Water Laws to Scrap

There are two ways we can respond as Californians to the wildfires in Los Angeles, and for those who share this concern, to the climate crisis which they cite as an underlying cause.

We can ration our consumption and retreat into increasingly dense urban cores. That’s one option. Or, alternatively, we can adapt and advance, rebuilding our neighborhoods in the “wildland urban interface,” recognizing that California already has the highest density urban areas in the nation, despite the fact that only five percent of its land is urbanized.

In the interests of full disclosure, and to state what has been the obvious message throughout these columns, we are unequivocally in support of the second option. Achieving sustainable abundance is the only way to achieve resilience, equity, and affordability. To do this will take restoring a balance that has been lost in California, a process that will require a completely new legislative agenda and a completely revamped set of agency priorities. One that places economic prosperity and property rights on equal footing with environmental objectives.

When asking for expert suggestions for specific steps needed to unwind the scarcity policies that have proliferated in California over the past two decades or more, the quality and scope of the responses were too valuable to condense into a few hundred words. Instead, over the next few weeks, they will be presented here with most of the details preserved. They focus on water policy, land management, permitting reform, energy, and infrastructure in general.

For this week, a list of reforms from a member of the water rights community who is painfully familiar with the harm inflicted by California’s political agenda of scarcity.

Ten State Water Laws/Regulations to Scrap:

(1) Bay Delta Plan (San Joaquin River). The oldest and most independent irrigation districts in the State are being forced to dedicate 40 percent of the flow in the San Joaquin River to one species of salmon without any evidence this flow will actually benefit fish returns. The State ignored significant evidence showing these salmon are being eaten by bass introduced into the system by the Department of Water Resources in the 1960s. There is a federal mechanism to overturn the Bay Delta Plan; the EPA is required to approve the Bay Delta Plan. The SWB submitted the Bay Delta Plan to EPA and EPA has yet to take any action – approval is literally sitting with the EPA.

(2) Water Code section 1058.5. This new law allows the State Water Board to take over and control locally run and independently funded water systems during statewide drought. The State Water Board did this in 2014-15 and 2021-2022 and issued weekly notices controlling local systems – many of which were incorrect and made erroneous assumptions. A court ruling overturned State Water Board actions in 2014-15 and awarded attorney fees to water right holders/irrigation districts that challenged the Board. Meanwhile, the 2021-2022 actions are still being challenged in expensive litigation – where the Board is alleging water right holders are harassing the Board by objecting to discovery.

(3) Expansion of Wetlands Definition. In 2019, in response to federal definitions of waters of the United States, the State Water Board adopted an expansive definition of wetlands to “fill the gap” left by the federal definition. The State Water Board did so by unlawfully amending a water quality control plan to regulate all state waters, instead of only WOTUS waters (Waters of the United States). Despite exceeding its authority and being ordered by a court to rescind the expanded wetlands definition, the State Water Board simply dropped the wetlands definition into its “Ocean Plan” to circumvent the court’s ruling.

(4) Biological Opinions. In late 2024, the US Fish & Wildlife Service issued the biological opinion for the Long Term Operations of the Central Valley Project and the State Water Project. These “BiOps” continue to recommend reducing flows in the Sacramento, Stanislaus and other rivers for the protection of fish and wildlife species.

(5) “30 by 30.” In October 2020, Governor Gavin Newsom issued Executive Order N-8220, which requires conserving 30% of California lands and coastal waters by 2030. The authority, jurisdiction or efficacy of this initiative is unclear.

(6) Conservation as a Way of Life. The new law, SB 1157, effective January of 2025, creates a regulatory framework where the State Water Board regulates urban water suppliers and imposes individualized water-use targets and conservation goals, among other directives. Some agencies will be required to cut water usage by more than 30% within the next 16 years. This law is complicated, expensive to implement, and imposes a top-down approach that replaces local solutions with state regulation.

(7) Water Supply Strategy. In August 2022, Governor Gavin Newsom released “California’s Water Supply Strategy (WSS) – Adapting to a Hotter Drier Future”, which outlines a strategy and priority actions to adapt and protect water supplies from the effects of rising temperatures and drier conditions due to climate change. Programs such as water recycling, desalination, and stormwater capture are great; however, the program does not fund local initiatives to actually do projects. Instead, it focuses largely on increasing State Water Board oversight and regulation of these projects. This WSS should be changed to shorten or eliminate State Water Board oversight and fund projects, rather than fund continuing and expanding regulation.

(8) Fish and Wildlife Code Section 5937. This requires dam operators to provide sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam. This code has been used too broadly by environmental plaintiffs to control the diversion, storage, and hydropower activities of dam operators.

(9) Salmon doubling goal. The Central Valley Improvement Act requires improvements to water management to protect fish and wildlife, including achieving the state and federal doubling goal for Central Valley Chinook salmon natural production, relative population levels between 1967-1991. The California State Water Board adopted this same goal in the 2006 Water Quality Control Plan. These goals drive much of the dedication to flow in the Delta; salmon doubling numbers are not realistic and result in chasing unrealistic metrics.

(10) Striped Bass protections. The state’s policy of putting fish before people. The California Department of Fish and Wildlife (CDFW) manages striped bass in California to ensure a healthy population for recreational fishing, including bag limits and commercial fishing restrictions. These protections for non-native predatory fish allow bass to continue eating native salmon, which drive the flow regulations in California.

Sadly, from the variety and excellence of other suggestions from other expert sources, this list is far from comprehensive. Scrapping all ten of these laws and regulations would go a long way toward again delivering abundant water to California’s beleaguered farmers and dehydrated cities, but much more is needed. Next week, expect another list that offers additional required steps to finally make California affordable again.