First, you have to grow the courtroom.

Yesterday I watched the CA Planning and Conservation League’s panel of law school profs releasing their recommendations for improving CA water law. Naturally I wish they had been bolder, but they likely anchored their starting point in currently existing law and that’ll drag you down. I’m not writing this to critique their report; rather I’d like to expose what appears to be engrained thought.

As an engineer, I had to laugh at the following contrast:

  • The lawyer profs write that there should be more extensive real-time gauging (which is true). Said Professor Lee, this is California! The state of high tech! How could we not have more real-time gauging?
  • Later they write: whelp, adjudications take many decades. Shame about that, but we just can’t do them faster and especially not big adjudications. Little ones might go faster, but your children will be grown before an adjudication of a big system is done.

We appear to believe in an unexamined default, where the laws of physics require multi-decade adjudications and real-time data collection just appears in your phone. In reality it is exactly the opposite. Real-time gauging and data collection and presentation is really hard! Gauges on water bodies are physically far apart, far from roads; you have to have electronics that can handle outdoor conditions; animals and people tamper with them; they require energy sources; data transmission requires dedicated communications systems. It is physically difficult and expensive and requires fulltime maintenance. California should do it! But it is hard to install and maintain.

Adjudications are just information in a room. I personally was hired to duplicate a historic adjudication once, for reasons; it’s just records and spreadsheets. Adjudications are not more difficult than personnel and project management. We could do them as fast as we care to purchase. That’s the key, of course. Doing them extremely slowly favors the water users that have already grown rich in the status quo. The only reason they take decades is that current water users and administrations are fine with them taking decades.

I would like to point out that if an administration wants to get something done, they expand their capacity to do it. The last two administrations have very much wanted to do the PeripheralTunnelsConveyance and they have created an entire shadow agency to design it and do the permitting. That’s a full JPOA, bylaws, directors, staff, consultants and an EIR. An adjudication is not more work than that. They simply aren’t a priority equal to this administration’s priority for Delta conveyance.


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2 responses to “First, you have to grow the courtroom.

  1. Tim Stroshane

    Damn straight.

  2. caroleekrieger

    I thought you might be interested in this recent piece in Calmatters on what you are discussing below…

    Thanks for your very thoughtful output.



    Here is the first step to a sustainable water policy


    Folsom Lake. Photo via iStock


    We do not have a water crisis. We have a water management crisis, and we must revamp our water policy to reflect a drier future.

    By Carolee Krieger, Special to CalMatters

    Carolee Krieger is the executive director for California Water Impact Network.

    Water that is promised in a contract but can’t be delivered is called “paper water” – shorthand for water that does not exist except in legal documents.

    During its mid-20th century frenzy of dam and canal construction, California allocated much more water than it actually had. These paper water commitments far exceed the amount of water than is available in our reservoirs and rivers. According to a study from the University of California, Davis, “appropriative water rights filed for consumptive uses are approximately five times greater than estimated surface water withdrawals.”

    What this restrained academic language reveals is a management crisis: no matter how much it rains and snows in California, we will always have a chronic water shortage because of overallocation.

    Why is this happening? As the UC Davis study found, the state has promised five times more water than could ever be delivered. Accelerating climate change only compounds the problem: Virtually all reputable computer models confirm California will receive less snow in coming decades, meaning our water deficit will only grow.

    Meanwhile, overallocation remains at the core of California Department of Water Resources policy. In 2021, the State Water Project could deliver only 5% of its contracted water.


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    Paper water also is extremely expensive. The total fixed costs for the State Water Project last year were more than $3 billion. These fixed costs must be paid even if no water is delivered. The Metropolitan Water District that serves Los Angeles and surrounding areas had to pay a significant portion of that bill – $654 million, inclusive of power costs – in 2020, while receiving only 20% of their promised water. In 2021 it was even worse – the agency paid the same figure and received 5%.

    Further, the effects of overallocation to the environment have been catastrophic as farmers and other users struggle to make up for the surface water shortfall. Aquifers are being pumped at unsustainable rates across the state, particularly in the Central Valley, where some regions have sunk by as much as 95 feet due to groundwater overdraft.

    Other environmental effects are proliferating rapidly. Due to reduced freshwater outflows through San Francisco Bay, many of California’s salmon runs are on the brink of extinction. Salt water is intruding deeper into the Sacramento-San Joaquin Delta from Suisun Bay and may threaten Sacramento’s water supply within 10 years.

    Instead of addressing these dire realities through sound programs that include conservation, wastewater recycling and the retirement of impaired agricultural lands, the state is proposing more tunnels and dams. This prohibitively expensive 20th century solution for a 21st century problem makes no sense when there’s not enough precipitation to fulfill current paper water contracts, let alone negotiating the greater shortfalls we’ll face in coming years due to climate change.

    In sum, we do not have a water crisis. We have a water management crisis, and we must revamp our water policy to reflect the drier future that is bearing down on us. That includes reigning in Central Valley corporate growers who use 80% of the water consumed in California while contributing only 2% to the state’s economy.

    Other actionable solutions to our water crisis exist, including:

    * Quantification of the water that’s legally available.

    * A public trust analysis of the Sacramento-San Joaquin Delta. Such an analysis would provide a comprehensive review of the economic impacts of all potential policy alternatives.

    * Development of local and regional water sources through wastewater reclamation, stormwater capture and environmentally sustainable desalination projects.

    We have enough water for all Californians – but we don’t have enough to waste. The first step to a sane and sustainable water policy is to eliminate imaginary water from our calculations. We need to shred paper water now.