Imagine a typical river somewhere in the American west. Farms rely on its waters and divert much of its flow to irrigated fields. Cities depend upon it for domestic and industrial water supply. Despite diversions, dams, and exotic invaders, native species survive, albeit tenuously. Many of those species are legally protected, and some are quite economically valuable, or at least could be if their populations recovered. A variety of agencies, both federal and state, manage the river in accordance with complex politics and laws. While the agencies' agendas differ in some ways, they share the common goal of achieving a stable balance among its competing uses, and they possess, at least in theory, the money and expertise to achieve that goal. If they fail, the consequences will be troubling: species may go extinct; non-compliance with environmental laws could lead to citizen suits or agency enforcement actions, which could leave irrigators or cities without badly-needed water; and litigation, political conflict, and economic and social dislocation are all but inevitable.[1]Yet, if this river is like many real rivers throughout the west, or like many forests, fisheries, air basins, or other natural systems presenting similar challenges to environmental managers,[2]the chances of such failure are high. This Article explores why those problems so often recur.
The reasons are invariably complex, and this Article does not explore them all. Political process quirks, skewed economic incentives, ideological hostility to environmental protection, and a variety of other causes-all heavily analyzed by legal scholars-often contribute to failures. But the core thesis of this Article is that an additional factor deserves attention, and that the road to ruin is often smoothed by legal concepts. Flaws in our basic framework for understanding resource crises-a conceptual framework that both flows from and influences the legal schemes that govern resource management-play an important role in undermining efforts to achieve stability.
Environmental managers often think they should balance environmental protection and resource consumption in a particular way: they think they should allow resource consumption right up to perceived brinks of illegality and should provide just enough protection to avoid legal violations, but no more. That understanding follows logically from our legal systems, which often encourage resource consumption and environmental protection but do little to promote preservation of margins for error. A variety of legal and policy responses flow from that conceptual approach, including selection of management systems designed to allow, facilitate, or subsidize increased consumption even of scarce resources, but also designed to penalize any activity that pushes environmental degradation beyond the perceived brink. But because environmental conditions often change, frequently in unexpected and dramatic ways, brinks of illegality can be shifting and difficult to discern, and resource management schemes deriving from that basic approach often require rapid adjustment. And if, as is often the case, adjusting is institutionally or politically difficult,[3]that traditional approach can lead to fragile solutions prone to costly collapses. This Article therefore articulates a different conceptual framework designed to preserve the durability and reliability[4]of resource allocations even in a changing, unpredictable world.
This Article illustrates the importance of that conceptual shift by analyzing one of the nation's highest-profile environmental controversies. Approximately forty miles northeast of San Francisco, in California's Central Valley, the Sacramento and San Joaquin rivers flow through a maze of channels and sloughs before discharging into San Francisco Bay. The Bay-Delta, as that estuary is called, is one of California's most valuable natural resources. Its watershed supplies most Californians with drinking water, irrigates millions of acres of agricultural land, supports recreational uses ranging from birdwatching to wakeboarding, and provides crucial habitat for diverse fish and wildlife species, many of which are threatened or endangered.[5]Balancing these often-competing needs is challenging, and the watershed has generated some of the longest-lasting battles in California's water wars.[6]
Those battles have created a legal laboratory, in which the state and federal governments have tested many approaches to environmental management. Dozens of published cases, many groundbreaking, have emerged from the Bay-Delta's conflicts.[7]Congress and the California Legislature have repeatedly intervened, first authorizing exploitation of the Bay-Delta and then drafting laws designed to protect it.[8]In the shadow of those legal constraints, agencies and interest groups employed novel institutional arrangements and innovative regulatory techniques, many in support of the recent "CALFED" program, which modestly described itself as "the largest, most comprehensive water management program in the world."[9]On a grand and expensive scale, CALFED devised a set of complex strategies for allowing increasing water consumption from an estuary where scarcity is common and variability endemic. Those strategies generated academic attention, with legal authors gravitating to Bay-Delta controversies like evolutionary biologists to the Galapagos.[10]Almost without exception, their scholarship has described CALFED's innovations as models of creative pragmatism.[11]
But those innovations have not succeeded.[12]Despite many advantages-regulatory creativity and cooperation, sometimes substantial funding, attention from high-level officials, and an impressive confluence of government and private expertise-the federal-state programs designed to redress the Bay-Delta's resource conflicts have so far produced a fiasco. Some efforts show preliminary signs of progress,[13]but within just a few years of implementation, key environmental parameters took significant turns for the worse.[14]Already-suffering fisheries suffered "dramatic declines;"[15]new species were listed under the federal Endangered Species Act; the Bay-Delta's levees remained dangerously prone to collapse;[16]and by 2005, just five years after the CALFED agencies approved their long-term program, the Bay-Delta's ecological health by some measurements appeared worse than ever before-notwithstanding benign weather.[17]As one Environmental Protection Agency (EPA) scientist then stated, "[s]omething is really, really wrong. It is not just the sensitive fish. The cockroaches are dying off."[18]By 2007, the situation was even worse. Annual fish counts revealed steep declines from even the 2005 record lows, and biologists described conditions as "'very bad . . . quite a step down from what was alarmingly bad from previous' surveys."[19]To avoid total extermination, California's State Water Project, which supplies most of the state's people with at least some of their water, briefly shut down its pumps, and then resumed only at levels far below normal.[20]Then, in late summer, a federal judge ordered another major cutback, which water suppliers estimated would reduce deliveries by a million acre-feet per year or more.[21]One lobbyist for water supply agencies described it as "the single largest court-ordered redirection of water in state history."[22]
Those ecological declines coincided with an institutional collapse.[23]The CALFED bureaucratic structure, though praised by legal scholars, was selectively ignored by key participants in the Bay-Delta controversies;[24]received withering critique from independent reviewers and legislators;[25]and struggled to obtain anticipated levels of funding.[26]The Bay-Delta Authority, the joint federal-state agency created to coordinate CALFED's implementation, fairly quickly saw its relevance evaporate.[27]The judiciary began filling the void. Along with the record low smelt counts, the immediate triggers for the first 2007 pump shutdown were two court orders that undermined the California Department of Water Resources' (DWR) pretensions of compliance with the California Endangered Species Act; the second set of limits came directly from a court order.[28]By 2007, CALFED was a widely-acknowledged failure, and stakeholders on all sides seemed to agree only that the present management approach must be replaced by something dramatically different.[29]
Yet many of the key conflicts that originally necessitated CALFED persist. California's water wants continue to grow; even as the crisis escalated, the federal and state agencies responsible for delivering Bay-Delta water proposed to increase pumping levels.[30]Such export pumping contributed to both historic and recent ecological declines,[31]and if those declines are not reversed soon, the CALFED agencies could lose species or leave the hub of California's water supply system an injunction away from another major shutdown, this one perhaps of more lasting duration-exactly the outcomes the CALFED process attempted to prevent. In 2005, California's Little Hoover Commission summarized the situation bluntly: "CALFED was forged from a crisis, and to a crisis CALFED has returned."[32]In 2007, commenting on the pump shutdown, DWR's director was similarly pessimistic: "If we don't fix the delta, this is going to start happening every year."[33]
These setbacks raise important questions about the ways we attempt to understand and resolve environmental crises, for CALFED initially seemed a model response to a classic environmental challenge. From the Columbia River to the Okavango Delta, water managers wrestle with similar dilemmas as they attempt to sustain ecosystems while allocating scarce water to meet growing human needs.[34]Other natural resources present analogous challenges; whether they are managing energy supplies,[35]ocean fisheries,[36]or forests,[37]to provide just a few examples, environmental decision-makers often must balance protection and consumption of scarce and variable resources. These challenges are likely to become increasingly common, as growing populations and developing economies place increased demand upon many resources, and as climate change exacerbates the instability of natural systems.[38]If the CALFED agencies, though blessed with access to "enormous intellectual talent,"[39]a political consensus demanding solutions, and the creativity to develop new management techniques, struggled to resolve their high-profile problem, the obvious and important questions are what went wrong,[40]and how could decision makers lacking such advantages hope to do better?[41]
As in any environmental crisis, the answers to those questions are complex and multifaceted, and several recent studies have explored aspects of CALFED's troubles.[42]The reports have identified flaws in CALFED's institutional structure, which left communication and accountability lines unclear; weak funding mechanisms that failed to produce anticipated money; leadership voids at the state and particularly federal levels;[43]and failures of adaptive management as key sources of trouble. The Public Policy Institute of California (PPIC) analyzed the Bay-Delta's full array of problems from the perspective of scientists, economists, and engineers; its authors attribute the Bay-Delta's ecological declines largely to attempts to impose stability upon a naturally fluctuating ecosystem.[44]
All of those critiques are cogent and important,[45]but this Article argues that they leave out something crucial.[46]CALFED's institutional arrangements, though flawed in many ways, still were better than those often utilized in environmental management,[47]and even when stakeholders thought CALFED's institutional arrangements were working well,[48]management decisions were laying the foundations for future troubles.[49]The PPIC report identifies weaknesses in the physical arrangement and management of Bay-Delta infrastructure and takes huge steps toward envisioning fixes, but the key solution it proposes-allowing more hydrologic variability-could take years, complex engineering, lots of money, and intense political wrangling to implement,[50]and is less likely to ever succeed if implemented without regard to the tensions discussed in this Article.[51]While funding may have been short of CALFED's managers' expectations, the program still has received far more government money than typically is available for resolving environmental problems.[52]Attributing CALFED's struggles to institutional shortcomings, leadership failures, paltry legislative allocations, and attempts to impose stability upon a naturally-variable ecosystem therefore suggests a vain search for levels of institutional achievement far beyond what normally is attainable, and those analyses provide only partial answers.
This Article adds to those reports, and to prior legal analyses of the CALFED process, by explaining that the Bay-Delta's resource allocation crises are also partially rooted in a basic conceptual model for understanding environmental crises-a model that, while often employed, is ill-suited for a world of environmental variability and institutional fallibility. That conceptual model posits that environmental laws and policies exist to promote and balance two things: consumption and protection. We debate, for example, how much water each user should be allowed to pump from our rivers and how much must remain to satisfy the needs of fish,[53]and we seek a permanent and stable allocation among those ends. Moreover, in accordance with common political and judicial concerns about over-regulation,[54]environmental managers routinely assume that all resources not necessary for legally-required environmental protection should or even must be available for consumption, and legal schemes often both incorporate and encourage that assumption.[55]Those managers frequently believe their job is to determine exactly where the brink of legal non-compliance lies, and to allow, or even encourage, consumption right up to the perceived edge. Hence, for example, the CALFED agencies determined, in the record of decision that defined their program, that even though they were legally obligated to improve environmental conditions, they also would attempt to provide more water for consumption and would leave less surplus water in the system.[56]Encouraged by a legal system prioritizing consumption yet demanding baseline levels of protection, and by conventional expectations that they should constrain consumption as little as possible, they perceived no other choice.[57]
The flaw in that conceptual framework is its misapprehension of the implications of environmental uncertainty, and its consequent tendency to encourage fragile, unreliable resource allocation patterns. Environmental conditions often vary chaotically, with changes, surprises, and occasional catastrophic events the norm. The rules apportioning scarce resources therefore rarely can set just one permanent balance between consumptive uses and protection requirements, and we cannot assume we may safely consume right up to some fixed and discernable brink of illegality. Instead, resource management rules should anticipate the burdens of uncertainty, managerial fallibility, and change. When dry weather leaves rivers low, for example, rules determine who gets the remaining water and whether the river is pumped dry, and when conditions are wet, managers must determine whether we leave a buffer for drought, or whether we instead allow habitual consumption beyond dry-year limits.[58]Likewise, if we misunderstand a natural system, and protected species' survival requires more water than we had anticipated, either our consumptive patterns or our protective goals must adjust. But the traditional consumption vs. protection, consume-to-the-brink conceptual framework says little about preparing for such variability.[59]Moreover, adaptive policies, though often emphasized in academic and policy literature as a means to address variability and uncertainty, can prove dauntingly difficult to implement, largely because common preferences for stability can undermine the institutional dexterity upon which adaptive management approaches depend.[60]The common consequence is fragile solutions ill-suited for a variable world.
Rather than focusing only on traditionally understood conflicts between consumption and protection, this Article proposes an improved conceptual framework that integrates environmental variability and uncertainty, and that directly addresses the relationship between that variability and the reliability-that is, the consistency and predictability-of resource allocations.[61]It acknowledges that in contexts of scarcity and environmental dynamism, protection, consumption, and reliability are often in tension,[62]with reliability increased only at the expense of protection or consumption. It also acknowledges that ignoring those tensions, and trying to maximize all competing goals simultaneously, can leave resource management schemes dangerously prone to costly and damaging legal collapses.[63]Consequently, solutions like those devised by the CALFED agencies, which are designed to increase consumption and protection of already-scarce resources, all in political environments where reliability is of paramount importance, will depend upon luck, managerial dexterity, brilliant engineering, and ample funding. Absent such good fortune, and even sometimes with it, such solutions will prove fragile, even if, like CALFED, they are implemented by talented and dedicated people, and thus all of the latest and best governmental innovations will be for naught, for reliability requires margins for error.
This Article's analysis proceeds as follows. Part II discusses traditional theories-the "capture" paradigm and the "tragedy of the commons"-that underlie our resource management laws and often provide our conceptual foundations for understanding environmental problems, and that, in combination with traditional misconceptions of environmental stability, encourage us to understate or ignore the unreliability inherent in many resource allocation systems. It then develops an improved conceptual framework incorporating the role of environmental dynamism and change. Parts III and IV turn from general theory to the Bay-Delta's story, using those conflicts to illustrate the importance of the conceptual shift described in Part II. Part III discusses how environmental conditions, engineered infrastructure, and legal systems have created deep tensions among consumption, protection, and reliability, and have encouraged the adoption of solutions ill-suited to survive environmental change. Part IV discusses how those tensions came to a head during the Bay-Delta crisis, and how resource managers attempted to resolve them.
This discussion does not provide a comprehensive analysis of the CALFED process. It focuses on aspects, albeit key ones, of CALFED's troubles. This Article also does not claim that poor results resulted solely from conceptual mis-framings, or that those results can be attributed to any single cause.[64]But this Article does explain how conceptual frameworks helped increase CALFED's vulnerability to failure, and Part V therefore closes the article by returning to the alternative conceptual framework proposed in Part II, and describing how it can inform improved resolutions of resource conflicts in the Bay-Delta and elsewhere.
II. Conceptual Frameworks and Dynamic Environments
A good starting point for understanding the challenges facing managers of many shared natural resources, and for explaining some of the legal roots of the Bay-Delta's crises, is the traditional set of conceptual frameworks often used to understand resource allocation.
One traditional framework derives from what some scholars label the "capture"[65]or "dominion"[66]paradigm. This framework defines resource consumption as a good to be rewarded and a measure of economic health; if it acknowledges limits at all, it generally assumes that economic signals and rational self-interest will facilitate responses to shortage without regulatory intervention.[67]Though now often criticized as an anachronism from an era when human populations were low and natural bounty seemed unlimited,[68]influential vestiges of that paradigm remain throughout our legal systems for environmental management,[69]and those vestiges tend to be bolstered by a political and academic climate overtly hostile to any "over-regulation" that might interfere with consumptive patterns.[70]Some resources remain purposefully unregulated, many rules subsidize or otherwise encourage consumption even of scarce resources,[71]and many resource users, even while acknowledging in theory that limits might exist, are loathe to admit they might be approached.[72]Despite the critiques of environmental economists, we still often determine the strength of our economy partially by measuring resources consumed.[73]Similarly, resource users routinely resist consumptive limits, and that resistance often succeeds, at least temporarily.[74]
Almost forty years ago, biologist Garret Hardin wrote the classic critique of the capture paradigm.[75]He observed that exploitation of an open-access resource-a resource open to many but controlled by none-creates a tendency toward tragedy.[76]Each user's most "rational" strategy is to take as much as possible, even if the collective effect of many individuals pursuing that strategy is exhaustion of the resource.[77]Individual restraint would be pointless, for resources saved through conservation would only be consumed by someone else.[78]The implications of Hardin's insight were profound-it undermined paradigms that treat resource consumption as an inherent good, and posited that only the intervention of regulatory schemes can prevent tragic outcomes.
The power of Hardin's metaphor[79]derives not only from its simplicity, but also from its relevance to the modern world. Many natural resource dilemmas involve some variation of the tragedy of the commons.[80]Water bodies, for example, are easy to exploit and difficult to control.[81]Fisheries,[82]timber harvesting,[83]and even air pollution[84]pose similar challenges. Hardin pointed out several of these examples, other scholars have discussed many more (and have refined his search for solutions),[85]and the commons has become a classic conceptual model for understanding and evaluating legal and policy regimes for resource management.[86]
Commons-management problems often are even more difficult than Hardin's essay might suggest, for many natural resources serve multiple and competing purposes. Hardin's primary example-a pasture where herdsman graze their cattle-implies single-purpose management; he did not discuss whether some grass might need to be reserved for the pleasure of picnickers.[87]Yet many resources are not amenable to such single purpose management. Rivers, for example, often support irrigation, hydropower, cities, fisheries, and recreation.[88]National forests cannot be managed solely for timber production; they also provide wildlife habitat, sustain water quality, and allow people to enjoy the woods.[89]Consequently, the challenges of managing common-access resources typically are multifaceted, with environmental values, consumptive uses, and non-consumptive uses all threatened with tragic outcomes.
In practice, the conceptual foundations for many natural resource regulatory systems derive from an uneasy and shifting balance between the multifaceted tragedy-of-the-commons theory and the traditional capture/anti-overregulation paradigm. Regulators typically rely upon legal environmental quality standards to mark the points at which tragedies of the commons are occurring, and are charged with taking sufficient action to avoid compromising backstop environmental protection requirements, even if those actions limit consumptive use. But, based on the belief that resource exploitation should not be limited unnecessarily-in other words, that government should regulate just enough to prevent illegal degradation, but no more-we often discourage anything that might be termed overregulation,[90]subsidize consumption,[91]and ask environmental managers to find exactly the balance point at which environmental protection requirements are met and human use is limited no more than necessary, assuming that such balance points can be readily discerned and that our consumption patterns will be stable so long as we stop just shy of the brink.[92]These balance points are often contested, with environmental advocates and resource consumers vigorously disputing where the brink lies, but far less often do we debate the wisdom or legality of consuming to that perceived brink. We seek, in short, to avoid tragedies of the commons but are often willing to fully allocate resources, and often strive to consume right up to the limits of the law.
B. Environmental Dynamism, Shared Resources, and a New Conceptual Approach
That standard conceptual framework predicts that resource managers face a daunting task, for they must resolve multifaceted tensions among consumers, and between consumption and protection. In practice, however, another dimension adds additional difficulty: resource managers also must address environmental dynamism and change.
Though notions of natural harmony, equilibrium, and, as naturalist George Perkins Marsh once stated, "almost unchanging permanence of form" once were standard among ecologists and still remain widespread among non-scientists-and although those views were still widely accepted when most of our major environmental laws were drafted-environmental scientists have long since discovered that many natural systems are neither stable nor predictable.[93]The available amounts of many resources fluctuate chaotically. Weather varies and climates change, even without anthropogenic influences, and Katrina-like catastrophes, though infrequent, are not anomalous.[94]Throughout much of the world, droughts and floods are the norm rather than the exception. Species migrate, often with human assistance, and invade new territories, sometimes with major consequences.[95]Even absent human influence, wildlife populations can vary wildly, and slight alterations to an ecosystem can trigger major changes in abundance.[96]Many ecosystems, including the Bay-Delta, depend upon change, and struggle to survive without some natural variability.[97]
Incomplete knowledge exacerbates the effects of natural unpredictability.[98]To provide one notorious example, Colorado River allocations for years were premised upon overestimates of flows, and water supply forecasts for much of the southwest thus were compromised not only by natural dynamism but also by human mistakes.[99]Wildlife species often are misunderstood, and biologists sometimes have limited knowledge about how many individuals there are or where they live.[100]Similar examples abound throughout environmental science; with many natural systems, we do not know what conditions might be normal, or whether or why changes are occurring.[101]Limited knowledge increases the difficulty of predicting how much of a resource will reliably be available for human use, how stringent environmental protections must be, and where exactly the brink of unsustainability lies.
Because of that variability and uncertainty, most schemes for managing common-access resources cannot just define one permanent balance between resource consumption and environmental protection. Though our conventional approaches may demand such balance points, they can be difficult to find, and are likely to change with time. Our management schemes instead must select-whether intentionally or inadvertently-the adjustments to be made when conditions change, and the extent to which we are prepared for variability. If drought strikes or unexpected environmental needs occur, for example, rules help decide whether water will remain in our rivers or lakes, or whether pumping will continue at environmental expense.[102]Similarly, during periods of abundance, or where environmental limits are not understood, rules help decide whether the resource will be consumed to the maximum extent possible, creating the potential for sudden and drastic cutbacks when times change, or whether consumption limits will reserve a margin of safety. The rigidity of our rules also influences preparedness; if our rules create de jure or de facto inflexibility, adjustment to change can be significantly more difficult. And when catastrophes strike-when natural disasters damage our supply infrastructure, for example, drought sets in, or protected species' populations plummet-our schemes for managing consumption and protection will likely have played important roles in determining whether we are prepared, or whether we must attempt costly changes in course.
Rather than merely balancing consumption and preservation, resource managers therefore must often address tri-polar tensions between resource consumption, environmental protection, and the reliability of resource allocations.[103]The conceptual diagram below graphically depicts this tension. The bottom left corner represents the amount of a resource devoted to environmental protection. The top corner represents reliability. The bottom right corner represents the amount of consumption.[104]A management scheme for allocating a scarce resource may be plotted by placing it closer to the values it favors and further from those it disfavors.[105]Moving a management scheme closer to any one corner, however, necessarily means moving it further from at least one, if not both, of the others. Maximizing reliability, for example, can require reducing commitments to both protection and consumption, and leaving an increased amount of a resource unallocated. The figure thus reflects the common reality that protection, consumption, and reliability can be mutually exclusive.
This diagram obviously is highly schematic. Protection and consumption are broad terms describing things not always amenable to clear definition, let alone measurement or quantification. Reliability, as defined in this Article, is a clearer concept, but still is difficult to measure or predict.[106]Additionally, though the diagram might suggest unity among environmental protections or consumptive uses, tensions commonly exist within each of the endpoints. Conditions favoring one wildlife species can harm another,[107]and consumptive uses can also conflict. Water users lower in a river system may share more interests with environmentalists devoted to preserving in-stream flows, for example, than with upstream appropriators, and fishermen and irrigators are often at odds.[108]
This conceptual framework also is by no means universally applicable or fully descriptive of resource management controversies. Its premise-that reliability, allocations to environmental protection, and resource consumption are inexorably in tension-is rarely entirely true, and its applicability can vary over time. Some resources are not that scarce. Others are, but only some of the time or in some locations, leaving opportunities to increase consumption without any significant threat of degradation or unreliability.[109]Even where such scarcity is persistent, many actions-for example, introducing technologies that augment resource availability, or altering the place or method of resource extraction-can simultaneously improve consumption, protection, and reliability.[110]Environmental protection occurs in multiple ways, many of which do not conflict with resource consumption, and much of the work of environmental managers focuses on finding such win-win solutions.[111]Environmental protection also often creates reliability benefits and can support consumption; without protection, resources can entirely disappear.[112]
For all of these reasons, this conceptual approach provides neither a universal explanation for environmental dilemmas nor an algorithmic tool capable of spitting out fully-formed solutions. But so long as we respect these caveats, it can be useful.[113]The tensions it describes are common, at least where resources are scarce; taking more water from a depleted river or more board-feet from a heavily-logged forest, for example, almost necessarily creates environmental strains, and those strains, by increasing threats of non-compliance with environmental laws, can threaten the reliability of consumptive use.[114]Even a generalized conceptual framework can help environmental decision makers understand and resolve those tensions. We routinely use simplified paradigms or rely on "pre-analytic worldviews"-traditional economics' treatment of consumption as an inherent good, a desire to avoid overregulation, the classic tragedy-of-the-commons theory, for example-to understand environmental controversies, evaluate the urgency of problems, and develop solutions, just as in other legal areas we rely upon simple concepts to organize our understanding of problems and inform or exclude possible remedies.[115]Those conceptual frameworks ought to address tensions between consumption, protection, and reliability, for the stability of resource allocation patterns tends to be ecologically, economically, and politically important.[116]But many traditional environmental paradigms address those tensions obliquely, if at all,[117]and thus encourage fixes that prove insufficiently robust or demand rapid adaptation when environmental conditions change. This conceptual approach, by contrast, provides an improved basis for evaluating and explaining whether solutions will be durable or are built only for best-case scenarios.
And those explanations can be politically and legally important. Although existing legal frameworks and economic incentives often encourage policymakers to allow or even promote consumption right up to perceived brinks of legal non-compliance, rarely do laws mandate such an approach.[118]Instead, agencies generally possess the legal discretion, though they may not realize it,[119]to plan for margins of error-so long as they are able to offer rational explanations for imposing such restraint. Similarly, while political pressure for consumption may be intense, it is not always immutable. The importance of long-term reliability is something resource-consuming businesses can appreciate,[120]and agencies generally have institutional incentives toward developing lasting solutions, for failure can be professionally embarrassing and personally disappointing.[121]Legal frameworks also are subject to change, and legislators often can decide whether to enact or perpetuate laws encouraging scarce resource consumption. A traditional conceptual model for resource management provides no argument against such policies or laws; to a judge or resource consumer believing that environmental limits are fixed and determinable and that consumption up to those limits poses no threat, or that adaptive policies can address any unexpected developments that arise, any regulatory reluctance to allow consumption right up to those limits might seem capricious. A reliability-based approach, however, provides the theoretical foundations for environmental managers to develop and justify solutions that reserve margins of error.
To ground this discussion in practical experience, the next sections turn from theory to exposition, and discuss ongoing efforts to resolve one of the nation's most important and intractable resource allocation crises. That discussion, though by no means comprehensive, is detailed; the CALFED controversy involves a complex and dynamic ecosystem, rich history, convoluted politics, and an intricate and somewhat conflicting web of laws, and although this discussion focuses on just some aspects-albeit important ones-of CALFED's troubles, those aspects are grounded in a complex context. Yet underlying all that detail lies the story of a typical environmental dilemma, and its faltering resolution illustrates the importance of developing better conceptual approaches to environmental management and law.
III. Creating the Tensions: Conventional Frameworks and California's Waters
For decades, allocating California's waters has caused controversy. The state's waters support diverse, economically and ecologically important, and legally protected ecosystems, but agricultural and municipal water needs are enormous, and total demands often exceed supply.[122]Those competing demands create tensions, and litigious water wars, often involving the Bay-Delta, as distinctively Californian as Hollywood or the Golden Gate Bridge.[123]
Though the conflicts are complex, the conceptual model described above summarizes the competing goals Californians hold for their water and the challenges they face in achieving those goals. Water in California is a regulated commons, with widespread access and limited overall quantities. Californians generally wish to consume lots of water, want reliable access to that water, and expect protection of the state's water-dependent natural systems, even as their consumption places those systems under strain. Further complicating matters, the amount of available water varies with changing precipitation patterns and evolving human and environmental needs. Consequently, managers allocating California's waters must determine not only how much protection to provide and how much consumption to allow, but also how reliable that consumption will be when the weather turns dry. As discussed in detail in the following sections, California's water management schemes have often addressed those challenges in dysfunctional ways.
To someone spending a winter in Eureka, in the northwest corner of California, Wallace Stegner's description of California as a "semi-desert with a desert heart" might seem odd.[124]Much of northern California receives extraordinary amounts of rain and snow. Areas of northwestern California's mountains are doused by 140 inches of precipitation in an average year.[125]Those storms then migrate eastward, piling up Sierra Nevada snowpacks that fill rivers through spring and summer.[126]Even some of California's urban areas would not appear, from a brief glance at an annual precipitation map, to be dry. San Francisco, for example, receives an annual average of twenty to twenty-five inches of precipitation.[127]
Rich ecosystems evolved in dependence upon that precipitation. Prior to the dams of the twentieth century, rivers swollen with Sierra Nevada snowmelt flooded much of the Central Valley each spring, creating habitat for millions of waterfowl.[128]Hundreds of thousands of salmon spawned in those same rivers.[129]The rivers met saltwater in the Bay-Delta, which then was an enormous and wildlife-filled maze of channels and marshlands.[130]In the southern San Joaquin Valley, Tulare Lake, formed by the discharge of the Tule, Kaweah, and Kings rivers, lay at the heart of another vast and explosively fecund wetland system.[131]Even in the deserts of southern California, runoff pooled in playas, creating oases amid the dry heat.[132]
Precipitation maps, however, and the historic extent of California's wetlands are deceptive.[133]In summer, when temperatures are hottest, California gets little rain. Though much of the Central Valley floods each spring, by May unwatered areas turn "dead and dry and crisp, as if every plant had been roasted in an oven."[134]Only isolated thunderstorms water the Sierra Nevada. Even the rain forests of the northwest coast rely on fog and stored groundwater for summer sustenance.[135]Further south, the aridity isn't just seasonal. Many of California's most populated areas-the Los Angeles Basin, San Diego, and their suburbs-are near-deserts, with only limited and episodic winter rainfall.[136]
California's natural environment is dynamic. In average years, California produces 71 million acre-feet[137]of runoff, but the variations are immense.[138]In 1983, for example, heavy rains fed 135 million acre-feet of runoff, while in 1977 the statewide total was 15 million acre-feet.[139]Catastrophic floods have occurred throughout California's history.[140]The floods of 1997 washed away campgrounds in Yosemite National Park and temporarily resurrected Tulare Lake. More recently, Governor Schwarzenegger warned of the potential for New Orleans-style disasters in the Bay-Delta region and sought federal assistance to repair two dozen levees.[141]Dry years also are extreme, and often occur in succession; California's 1987-1992 drought was the latest episode in a longstanding pattern.[142]Tree ring studies indicate that California, like much of the southwest, has experienced dry periods far longer than those of the past century, and sooner or later such extended droughts will recur.[143]
California's natural reservoir systems somewhat mitigate this climatic variability. Mountain snowpacks usually last well into summer, ensuring that in most years runoff continues long after precipitation ceases.[144]Some precipitation also infiltrates the subsurface, remaining in aquifers that replenish streams and supply wells as surface runoff diminishes.[145]But each of these reservoir systems has its limitations. California's snowpacks are variable and have been declining, and because almost all of California's snow melts each year, snowpack reserves primarily mitigate intra-annual variability.[146]Groundwater reserves do last from year to year, but many of the state's aquifers are already depleted, and mining overdrawn aquifers can cause subsidence of the ground surface, raise pumping costs, and deplete streams by depriving them of recharge.[147]Consequently, irregular surface flows remain a fact of life in California.
Other sources of natural variability similarly affect California's hydrologic systems. Because many aquatic species are legally protected, fluctuations in fish and wildlife populations can have direct consequences for water supplies. Earthquakes have an enormous potential to disrupt California's water system, potentially limiting water deliveries to southern California or the San Francisco Bay area.[148]Human activities create additional dynamism. New land use developments, upstream forestry practices, pesticide applications, and species introductions all can further alter the state's aquatic ecosystems, affecting both the amount of water in rivers and environmental needs for those flows.
Perhaps the most significant source of variability is anthropogenic climate change.[149]Simulation models predict global warming will drastically reduce Sierra snowpacks, decimating the capacity of California's primary freshwater storage system.[150]Even if overall runoff remains steady, that runoff is likely to occur in larger pulses earlier in the year; floods will be larger and when California needs water the most, less will be available.[151]Rising sea levels will further complicate water management. Bay-Delta water users already struggle with saltwater approaching drinking-water intakes and below-sea-level lands present huge flooding threats, and those problems will grow as polar icecaps melt.[152]Additionally, climate change may increase the vulnerability of many water-dependant species by raising water temperatures and relocating climate zones uphill or further north.
Because of all this dynamism, California's waters do not conform to George Perkins Marsh's idealized description of nature's "almost unchanging permanence of form."[153]Even without human influence, aquatic environments fluctuated chaotically, and human activity, though sometimes intended to impose stability, has also introduced new sources of dynamism.
B. Engineering Systems and Environmental Impacts
As California grew from a sparsely settled frontier into the nation's most populous state, its precipitation patterns created demands for infrastructure that could store and move water, and Californians repeatedly turned to water supply engineers to keep floods at bay, make deserts bloom, and help cities grow.[154]The result was one of the most extraordinary plumbing systems in the world.[155]
Cities and local irrigation districts initially developed their own infrastructure,[156]but by the middle of the twentieth century, perceived engineering needs had outgrown the capacity of local governments to respond. The state and federal governments then took the lead, and turned to the Bay-Delta watershed as their primary source of water.[157]In the 1930s, the United States Bureau of Reclamation[158]began developing the Central Valley Project (CVP), a massive project that would ultimately tap the Trinity,[159]Sacramento, and San Joaquin watersheds and provide millions of acre-feet of agricultural water supply, much of it pumped from the southern edge of the Bay-Delta.[160]In the 1960s, DWR built a parallel project, the State Water Project (SWP), which relies primarily on dams on the northern Sierra Nevada's Feather River and pumps in the southern Bay-Delta.[161]The SWP now delivers millions of acre-feet of water to southern California, with municipal suppliers in the Los Angeles and San Diego areas and Kern County agribusinesses taking the lion's share.[162]By the 1980s, water projects had dammed all but one of the Central Valley's rivers, and only a few major watersheds, mostly in the coast ranges of northwestern California, remained largely untapped.[163]
These water projects shaped modern California, partly by providing enormous benefits. California's reservoirs offer both flood and drought protection, mitigating some of the effects of dynamic precipitation patterns.[164]Their waters irrigate some of the most productive agricultural areas in the world.[165]The Los Angeles, San Francisco, and San Diego areas have grown into bustling urban regions and economic powerhouses.[166]From San Joaquin Valley farmers to San Francisco restaurateurs to Silicon Valley high-tech manufacturers, almost all Californians now depend, on a daily basis, upon water procured from someplace far away.[167]
The costs also were immense.[168]The projects were expensive both to construct and to operate, and the general public bore much of the financial burden and continues to provide multimillion dollar annual subsidies to some project operations.[169]The environmental consequences were drastic.[170]Tulare Lake-once larger than Lake Tahoe-no longer exists.[171]Many stretches of California's rivers, including areas famous for both scenic beauty and recreational value, now lie submerged beneath reservoirs.[172]Others-most notably the San Joaquin River below Friant Dam-for long periods received none of their historic flows.[173]Those environmental impacts in turn have had major economic impacts, including, despite expensive hatcheries, the near extirpation of many commercial, recreational, and tribal fisheries.[174]
Because of increasing public awareness of those costs, the era of grand infrastructure construction eventually came to a halt.[175]The State Water Project never was completed. Before dams could be constructed on several of California's northwestern rivers, first the state government and then Congress designated them as wild and scenic.[176]Plans to construct a "peripheral canal," which would have connected the Sacramento River directly to southern California's aqueducts, were rejected by the state's voters, many of whom perceived the canal as a southern California water grab.[177]In the past twenty-five years, new dam construction has been limited and water supply development has occurred primarily through increased conservation, changed management of existing supplies, and increased extraction from the existing infrastructural system.[178]
Partly because development ceased, California's major water projects deliver less water than their proponents had hoped. The State Water Project, originally intended to deliver approximately 4.2 million acre-feet per year, has averaged only approximately 2.3 million acre-feet.[179]The Central Valley Project has come closer to its proponents' expectations, but in drought years some CVP users also have faced major cutbacks.[180]Nevertheless, water deliveries continued to grow even after dam construction largely stopped, increasing even through the first years of California's 1987-92 drought.[181]Though deliveries then dropped, following agreements and legislation designed to reallocate some water to in-stream flows, Bay-Delta exports then climbed again, reaching all-time highs in the years preceding the 2007 pump shutdown.[182]
The growth in consumption has extended the enormous environmental impacts of water project operations past the development era.[183]Water quality and quantity problems are chronic in many of California's rivers; in summer, significant stretches of many rivers have no water at all.[184]Replacement of the San Joaquin River's freshwater by agricultural return flows has changed water quality so drastically that the river, though arising in Sierra Nevada wilderness areas, is known as the "lower colon" of California.[185]The Bay-Delta also has been severely changed, and now is managed largely to convey freshwater to in-Delta water users and the south Delta pumps. Partly because of that pumping and the altered flow regime, many of the fish species that live in or migrate through the Bay-Delta face extinction, and water quality violations are chronic.[186]
Despite this scarcity and degradation, California's recent water management history also contains many positive stories. In most years, most Californians do have enough water.[187]Californians are becoming more creative in managing, conserving, and reusing water supplies, and both urban and agricultural conservation could feasibly achieve great reductions in water use.[188]In some reports, DWR has predicted that overall water use could decrease, even as population grows, through aggressive conservation and demand management.[189]Some non-governmental studies conclude the conservation potential is much greater than DWR's estimates.[190]Agricultural land retirement, though politically controversial, also holds enormous potential to reduce water demand, and desalination may become more realistic.[191]Altering economic incentives by removing subsidies, requiring beneficiaries to fully pay for storage and delivery infrastructure and for environmental mitigation, and charging user fees that bring water costs somewhat closer to market values all could similarly reduce demand.[192]Environmental restoration also is an increasing theme of California water management, albeit outside the Bay-Delta; in recent years, Californians have taken significant steps toward restoring Mono Lake and the Trinity, Owens, and San Joaquin Rivers.[193]
Nevertheless, in many ways California water management remains a near zero-sum challenge of managing a variable and often scarce commons. Millions of people want to use California's water, and thousands of competing institutions attempt to supply not only those needs but also anticipated future demand increases. Though in most years people get the water they need, aggregate demands speak for most water available even in good years, and in dry years shortages are likely to be endemic.[194]With environmental systems degraded and ecological needs partly unmet,[195]intermittent shortage is now a fact of life.[196]Consequently, California's water managers face the constant challenge of balancing consumption and protection of a scarce, valuable, and variably-available resource.
C. The Legal Regime and Its Inherent Tensions
The legal system for managing California's water is as complex as the plumbing systems it governs and the dynamic ecological systems it protects. Both the federal and state governments have extensive and intertwined systems of constitutional, statutory, and common law applicable to water resources management. Those laws complement an intricate contractual regime, and the statutes are implemented and contracts administered by a diverse set of governmental institutions-many of which act at cross-purposes.[197]The entire system contains uneasy juxtapositions borne of diverging political agendas and varied historical roots. The frontier impulse to conquer the wilderness, the New Deal-era's infatuation with massive government sponsored infrastructure, conservative predilections to use government for the benefit of large business interests, and modern preferences for environmental protection all have left lasting imprints on California water law, and those competing influences have helped create a system plagued by internal tensions.[198]Many elements of that legal system encourage aggressive consumption; yet mandates for baseline levels of environmental protection are stringent and inflexible, at least in theory, and reliability, though valuable to both human consumers and environmental systems, enjoys little protection. The system thus epitomizes the traditional management approach described in Part II; to the extent its conflicting requirements and incentives can be resolved into a coherent whole, it mandates backstop protections yet promotes consumption right up to those legal limits.
1. The Appropriative Rights System
The legal system's incentives toward consumption derive partly from the traditional doctrinal rules of western water law. Most[199]surface[200]water allocation in California is governed, at least in theory,[201]by prior appropriation law.[202]Under that system, a user establishes a surface water right by obtaining a permit from the State Water Resources Control Board,[203]removing water from a stream, and putting it to reasonable and beneficial use.[204]The scope of a right depends upon the actual extent of that reasonable use, and an appropriator cannot, in theory, possess a right to more water than he actually needs and uses.[205]The priority of the right-the extent to which it subordinates, or is subordinate to, the rights of other users of the same water source-is a function of timing; the first person to perfect a water right becomes senior to others.[206]She then may use her entire right in dry years, even if no water will be left for other junior appropriators.[207]So long as she continues to reasonably exercise that right, she will not lose it.[208]
The appropriative rights system does not preclude full allocation of a river, and instead can encourage aggressive water use. The need to withdraw water from a stream to establish a right and the greater priority of earlier-established rights create incentives to pump water out of rivers as soon as possible.[209]Once a right is established, the threat of forfeiture discourages conservation; water saved, under traditional prior appropriation doctrine, is water lost.[210]No payment for the actual water is required; instead, it essentially is free for the taking so long as a permit exists.[211]Consequently, many rivers are so fully appropriated that paper allocations exceed actual flow,[212]and a fair number of California's rivers unnaturally run dry.[213]These incentives have led to widespread criticism that prior appropriation doctrine
is an inefficient historic relic, a legal system indifferent to ecological needs and prone to accelerating resource overexploitation.[214]
Partly in response to such critiques, California has reformed its appropriative system in ways designed to encourage efficiency and environmental sensitivity. In recent decades, for example, water-marketing advocates have succeeded in creating statutory provisions allowing transfers of water rights.[215]The rationales for marketing are straightforward:[216]if conserved water can be transferred rather than lost, inefficient users should have an incentive to curb excesses and sell savings, and other needy users may obtain conserved water rather than developing new supplies.[217]Environmental water needs also could be met, in theory, by purchasing water from willing sellers who presumably can provide that water with reduced opportunity costs.[218]Additionally, agricultural and urban users could minimize treatment costs by transferring higher quality water used by agricultural users, who do not need treatment, for lower quality water previously allocated to municipal use.[219]Transfers are limited by multiple factors, however, including fears of third party effects, limited access to water-conveyance infrastructure, and principles of California law and aquatic ecology that are somewhat incompatible with marketers' attempts to treat water as a fungible commodity.[220]Consequently, while many water-marketing advocates believe water trading, though growing,[221]remains overregulated and underutilized, other commentators question whether real water markets ever can or should exist.[222]
The appropriative rights system also has increasingly tolerated instream flow rights. Historically, while the state could limit rights in order to protect environmental values, an appropriator could establish and sustain a water right only by taking water out of a river.[223]Recognizing the anti-environmental incentives of this rule, the California Legislature has repeatedly amended the state's Water Code to allow appropriators to dedicate portions of their rights to instream use, and to allow the state to claim rights in instream flows.[224]Nevertheless, the prohibition on directly appropriating instream rights remains, and, like water marketing, appropriative protection for instream flows remains limited.
Two older doctrines, one deriving directly from the state constitution and the other from ancient common-law principles, also create potential for flexibility and environmental protection within California's water rights system. First, the California Constitution allows water rights only to the extent that a use is "reasonable."[225]That amorphous word grants state regulators and courts discretion to modify rights based on evolving conceptions of reasonability, for "no one can acquire a vested right to the unreasonable use of water."[226]That rule can mandate reductions in the place, purpose, or amount of use, and on occasion actual or threatened invocations of reasonable use doctrine have significantly changed water use.[227]
The public trust doctrine also creates potential for conservation within the traditional water law system. Under California law, water rights users may own usufructuary rights,[228]but the state owns the water and watercourses, and holds the latter as trustee for its people.[229]That trust obligates the state and all its agencies to consider whether water allocations are consistent with values like wildlife protection,[230]and no vested right can exist if a use threatens such public trust values.[231]Similarly, the public trust doctrine empowers the state to reexamine permits already issued, and to adjust those permits in light of evolving public needs.[232]The doctrine thus creates an inherent qualification upon property rights in water, essentially granting the state discretion to treat the natural environment as the most senior appropriator.
In combination, water marketing, instream flow rights, reasonable use doctrine, and the public trust add complexity to a legal system otherwise engineered simply to encourage widespread water use at the maximum possible rate. Those doctrines do not remove incentives for water consumption-even water marketing, which does create a conservation incentive, generally does so only if someone is willing to pay to use the conserved water-but the latter two allow a substantial amount of discretionary, government-imposed flexibility, and the former two theoretically allow water users ways to achieve greater efficiency and protection.[233]But while some of those doctrines may undermine the basis for expectations of reliability, they otherwise leave intact a system slanted toward promoting water use.
In practice, contractual arrangements are at least as important as appropriative rights in determining the allocation of California's water, for most Californians receive water in accordance with contractual terms. Those contracts, much like California's traditional water rights system, generally are structured to promote consumption while providing few guarantees of reliability.
Most Californians do not actually hold appropriative water rights. Instead, they obtain water through municipal water agencies, water districts, irrigation districts, mutual water companies, and a few other types of governmental, quasi-governmental, or private water distributors.[234]Many obtain their water through a series of such entities.[235]Some of those distributors hold their own appropriative rights, but many-particularly those reliant on Bay-Delta water-depend in whole or in part on water from the Central Valley Project and the State Water Project.[236]Reclamation and DWR, respectively, hold the appropriative rights for those projects, and deliver water in accordance with the terms of long-term contracts.[237]
Those CVP and SWP contracts share some important common principles. Rather than creating fixed entitlements to certain amounts of water, both define maximum allocations while reserving state and federal discretion to deliver less than the full amounts.[238]The CVP contracts thus allocate more water than the Bureau typically delivers, and allow the federal government to withhold deliveries in times of drought or environmental need.[239]The SWP contracts similarly allocate more water-almost twice as much water, in fact-than the project delivers in average years, but specify mechanisms for allocating water in the event of temporary and permanent shortages or unexpected surpluses.[240]Both sets of contracts thus create a somewhat curious allocation system, in which paper rights can diverge substantially from typical water availability or use.
In another important respect, the projects' contracts are quite different. While the SWP contracts charge rates sufficient to cover the project's operating and capital costs, the federal government subsidizes deliveries.[241]The CVP, like most Bureau of Reclamation projects, was predicated on the somewhat Jeffersonian belief that small-farm agriculture brought widespread public benefits and thus merited public financial support.[242]Though the Bureau never has succeeded in delivering CVP water solely to small farms,[243]it does deliver water at substantially below-market rates.[244]The CVP's contractors' payments do not cover project operating costs and have barely begun to reimburse the public for the millions invested in constructing the project.[245]Even after attempted pricing reforms in the 1980s and early 1990s, CVP contractors remained heavily subsidized,[246]and recently renewed contracts will continue those subsidies well into the future.[247]The consequences are predictable; as the Congressional Budget Office has warned, "pricing structures . . . often provide no incentive to farmers to use water efficiently and may even encourage them to increase their water use."[248]
California's primary water contract systems therefore utilize an odd allocation methodology. Large paper allocations and cheap prices encourage heavy consumption.[249]But contractual terms create little legal justification for contractors to expect certain deliveries.[250]That contractual uncertainty compounds the variability of the underlying rights, for the Bureau and DWR have no power to contract around the inherent contingency of their appropriations.[251]Though encouraged to consume, water users therefore have few legal guarantees of reliability.
The third major component of the California water law regime is the set of substantive and procedural obligations created by federal and state environmental laws, whose protective mandates create no small tension with the appropriative and contractual systems' incentives toward consumption. Broadly speaking, these laws define some outcomes-species extinctions, or violations of water quality standards, for example-that agencies must avoid, and establish mechanisms for public and private enforcement, but they provide few requirements for protection beyond those backstop prohibitions. They thus create potentially strict penalties for consumption that goes too far but do little to compel reservation of margins for error.
A comprehensive survey of these laws would require an entire book; what follows is a cursory summary.
Perhaps the simplest law applicable to California waters is the federal Wild and Scenic Rivers Act (WSRA).[252]While most water laws require some sort of balancing or compromise; the WSRA's mandate is simple: once a river is designated, no use may impair the values for which that river was designated.[253]Additionally, unless written into the authorizing legislation, no obstructions of the river are allowed, and appropriations are extremely limited.[254]Environmental protection thus is prioritized above all else, and a WSRA-protected stretch of river essentially is removed from the water commons. But these protections, although stringent, apply primarily to rivers on California's northwest coast or to stretches in terrain so rugged that the possibilities for competing appropriative uses are limited.[255]
Several federal and state environmental statutes establish more widely-applicable requirements. The federal and California Endangered Species Acts, for example, limit "take" of listed species, and compel water managers to leave enough water in California's rivers to sustain and recover threatened or endangered species' populations.[256]The Central Valley Project Improvement Act (CVPIA) likewise allocates water to environmental purposes, requires restoration projects, and establishes numeric goals for recovering fish populations.[257]California Fish and Game Code section 5937 requires dam operators to maintain fisheries in good condition.[258]In combination, and with the help of numerous cases filed by environmental groups, these statutes have become important constraints on water management throughout California.
Both federal and state laws also protect water quality. The federal Clean Water Act (CWA) limits point source discharge of pollutants and requires identification of and remediation plans for waters with deficient water quality.[259]California law establishes parallel and intertwined requirements. The federal CWA allows states to implement and enforce federal water quality programs, and the state's Porter-Cologne Water Quality Control Act[260]delegates that authority to state and regional water boards.[261]These boards must set statewide water quality standards and must promulgate and implement plans to achieve those standards.[262]The federal Clean Water Act's citizen suit provision also facilitates public enforcement of water quality laws, and numerous non-profit groups often prosecute permit violations and other water quality transgressions.[263]
Other statutes grant the State Water Resources Control Board (SWRCB) additional discretion to set environmental limitations on water use.[264]The SWRCB may establish minimum instream flow levels.[265]It may declare a river or stream "fully appropriated," meaning that no further appropriative rights can be obtained, and it need not wait for the stream to be pumped dry before making such a declaration.[266]It also may impose environmental mitigation conditions on the exercise of water rights.[267]Under the California Environmental Quality Act (CEQA), which requires identification of the environmental impacts of government projects, the SWRCB and other state and local agencies also must mitigate, if feasible, the adverse environmental impacts of any water project they approve or build.[268]
In combination, these laws mandate levels of environmental quality that do not presently exist in many California waterways. If fully and successfully enforced, federal and state water quality laws would compel cleanup of dozens of water bodies currently listed as water quality impaired, including all of the Sacramento/San Joaquin Delta and portions of many of its tributary streams.[269]California currently has dozens of species listed under the state or federal Endangered Species Acts, including many Bay-Delta-dependant species, and both acts require those species' recovery.[270]Similarly, the CVPIA demands recovery of several degraded fisheries,[271]and California Fish and Game Code section 5937 may go even further, requiring restoration of below-dam fisheries-in California, hundreds of river miles are below dams-to historic levels.[272]Finally, CEQA's mitigation requirement ought to minimize additional environmental impacts even as project changes or developments occur.[273]Those laws severely limit the reliability of water use patterns that impede environmental recovery; through citizen suit provisions and strict substantive mandates, such uses face the ongoing possibility that a successful plaintiff may succeed in imposing drastic changes.[274]
b. Procedural and Planning Laws
Complementing the substantive component of these environmental laws is a set of federal and state laws, many recent, requiring proactive water supply planning and seeking to avoid mismatches between supply and demand. In theory, these laws can play a significant role in mitigating conflicts between the protection and consumption goals of California law, and can soften the harshness of substantive statutes, for they could alert government decision makers and public participants to potential conflicts before they occur. However, because these laws apply primarily to new projects and new development, they are better suited to minimizing new conflicts than to mitigating old ones. They thus do little-though not nothing-to resolve the consume-to-the-brink incentives inherent in other laws governing California's waters.
The foundational planning laws applicable to California water are NEPA and CEQA. Both require environmental reports documenting the effects of, and alternatives to, government sponsored or approved projects.[275]Since the 1970s, California's courts, in applying CEQA, have consistently held that an environmental evaluation of a water-consuming project must disclose where the water will come from, and at what environmental cost.[276]Because CEQA, unlike its federal counterpart, requires mitigation of adverse environmental effects, its disclosure requirement has teeth, and in theory assures that the impacts of tapping new water supplies should be considered and, if possible, mitigated prior to implementation of any new project.[277]
The California Legislature recently supplemented CEQA with several laws designed to prevent new development without identified and reliable water supplies.[278]In 1983, the Legislature enacted the Urban Water Management Planning Act (UWMPA), which requires urban water suppliers to adopt conservation plans.[279]In 1995, the Legislature supplemented the UWMPA by passing AB 901, which required water supply evaluations prior to approval of new large development projects.[280]A follow-up study suggested that the new law was largely ignored, and in 2001 the Legislature enacted two more stringent laws linking water supply and planning.[281]SB 221, the first of the two statutes, requires that detailed water supply assessments precede approvals of major residential development projects, and precludes approvals without adequate water supplies.[282]SB 610, the second statute, requires water supply assessments as a component of CEQA review, and also establishes more stringent requirements for urban water management plans that anticipate reliance on groundwater.[283]Preliminary research suggests compliance with these new laws has been significantly better than compliance with their predecessor.[284]
In combination, these laws link growth and water supply planning and appear to prohibit large-scale growth without water.[285]They also create some potential for reconciling the consumptive and protective goals of state and federal law, for they could focus attention where under-watered growth threatens to create excess demand.[286]Nevertheless, because planning laws are triggered largely by changes in the status quo, they do not compel or create incentives for reductions in existing use.[287]Moreover, California law also embodies competing goals; though water districts cannot ignore environmental constraints, they are similarly prohibited, at least in theory, from using planning laws to implement no-growth policies if additional water supplies can be procured.[288]Consequently, while these laws may slow
the rate at which demand grows, they are unlikely to create any reduction in overall water use or to resolve the tensions such use creates.
The final important, though to date relatively minor, component of the legal scheme governing California water is a set of laws seeking to facilitate conservation. Beyond its reasonable use requirement,[289]neither California nor the federal government has an across-the-board rule requiring water conservation. Several statutes, however, do provide incentives or, at least on paper, limited mandates. Water Code section 375, for example, empowers water suppliers to impose conservation requirements, though it does not require them to do so.[290]Other provisions empower local governments to mandate reclaimed water use for landscaping, create limited requirements for recycled water use in toilets and cooling facilities, and attempt to encourage (and allay fears about) water recycling.[291]Water Code sections 13577 and 13578 set the goal of recycling a million acre-feet per year by 2020 and charge DWR with recommending ways to achieve that goal. Finally, California law now imposes almost across the board metering requirements on residential (but not agricultural) use, which is a substantial improvement in a state where water use in some dry areas has historically gone unmetered.[292]
In addition, the California Legislature has repeatedly issued bonds, generally accompanied with hortatory legislative findings promoting water conservation, to provide funding for conservation projects.[293]The state's Water Pollution Control Revolving Fund also provides money for conservation and water recycling.[294]Additionally, state law requires DWR to "offer assistance to agricultural water suppliers to implement efficient water management practices to improve the efficiency of water use,"[295]and requires agricultural districts to develop conservation plans-if they "determine that a significant opportunity exists to conserve water."[296]These provisions generally offer financial carrots, however; they include neither sticks compelling conservation nor mandates to limit the amount of water extracted from the state's natural environment.[297]
Federal law contains some similar provisions. The 1982 Reclamation Reform Act, for example, required Bureau contractors to develop water conservation plans, which the Bureau then would approve; though "implementation of those plans typically has not been enforced," the requirement remains.[298]The CVPIA established similar requirements, mandating tiered pricing and allowing greater use of water transfers, which theoretically create conservation incentives.[299]But federal law, much like that of California, creates few mandates for conservation and caps water allocation only by setting maximum contract amounts, which typically are far in excess of actual availability.
The federal and state water conservation laws therefore are, at best, in their nascent stages, and appear more consistent with Vice President Cheney's famous characterization of conservation as a personal virtue[300]than with the reality of a state faced with endemic water scarcities. Those laws create no overall limits on use, and they endorse and empower but rarely require conservation.
D. The False Promise of Flexibility
This legal system might superficially seem a reasonable response to California's environmental realities. Though some parts of the legal scheme encourage more water consumption and other parts demand protection of the resources that consumption endangers, the system as a whole, by preserving governmental discretion to impose cutbacks in times of shortage, ideally might allow California to wring the maximum consumptive benefit from wet periods while adaptively adjusting to dry years' environmental constraints.[301]The system thus might appear to resolve the basic tensions between consumption, protection, and reliability by encouraging consumption right up to protective limits and sacrificing reliability, instead invoking flexibility and adaptation to resolve any problems that result. In practice, however, reliance upon theoretical flexibility and adaptability seems misplaced, for the system also encourages optimistic expectations and a sense of entitlement. That encouragement, in combination with the often significant costs of adjustment, can make flexibility practically and politically difficult to invoke.
People generally fear a loss more intensely than they covet an equivalent gain-it is more threatening to lose fifty dollars you assumed was yours than to miss out on a fifty-dollar windfall, particularly if you already have made plans in reliance upon those fifty dollars-but the legal systems for allocating California's water seem calibrated to inflame that tendency.[302]By giving water consumers paper contracts stating fixed quantities, they encourage investment in water-dependent infrastructure and foster a sense that full deliveries are a right; the users have the paper to prove it, even if those amounts exceed what nature and existing infrastructure can consistently and legally provide.[303]Consequently, regardless of what judges and scholars say about the inherent contingency of water rights, users may believe that reductions are deeply unfair, if not outright confiscations of property. Environmental statutes, the public trust doctrine, and reasonable use requirements create countervailing expectations. The underlying premise of the public trust doctrine is that water first and foremost belongs to the public, meaning that users who infringe on trust values or unreasonably use ecologically-needed water are essentially taking public property.[304]Regardless of what paper permits or contracts say, environmental advocates therefore can reasonably perceive ecologically beneficial flows as a public entitlement. Consequently, no matter how water is allocated, at least someone will feel, except in the wettest of years, that their water has been taken away, and will vigorously resist that perceived loss.[305]
The regionalism and "tribalism"[306]of water politics exacerbate these senses of entitlement. The members of many of the interest groups involved in California's water struggles live in somewhat insular communities, which form fertile incubators for each group's sense of right.[307]Rural Central Valley residents, for example, fairly uniformly support agricultural water diversions and are skeptical of the demands of both urban users and environmentalists.[308]For San Francisco Bay Area residents, who tend to be more favorably inclined toward environmental protection,[309]the Central Valley often seems a place with a totally different economy and political culture. Similarly, north-of-Delta water users, though generally agricultural and more skeptical of environmentalists' goals, also tend to be united in fear of Southern California's reaching grasp.[310]Urban users in southern California, meanwhile, tend to live far away from, and may never see or even be aware of, the areas impacted by their own water consumption.[311]Some
integration exists, of course, but to a striking degree perceived interests are uniform within, yet distinct among, California's various regions.[312]
This regional differentiation facilitates misunderstanding and distrust, and each region has stories discounting the legitimacy of others' claims to water. Southern California, in the eyes of many, is the phreatophytic land of sprawl and hosed driveways, all supplied through a combination of institutional arrogance and duplicity.[313]The Central Valley is perceived as the black hole for water over-consumption, a place capable of supplying all unmet urban and ecological needs were it not so disdainful of environmental protection and wedded to profligate use.[314]Environmentalists, meanwhile, are sometimes perceived as the foolish elitists who would stunt southern California's growth and deprive agriculture of its lifeblood to sustain a few precious fish.[315]These stories validate and harden competing communities' perceptions of entitlement,[316]leaving these communities reluctant to acknowledge the contingency of their allocations, and further limiting the flexibility theoretically inherent in California's water rights system.
History also complicates these problems. California's major water projects were built and numerous contracts first signed before increasing environmental awareness led many people to question the dogma that water flowing to the ocean is, as Justice Jackson once colorfully put it, a "wasting treasure[]" that rivers "thriftlessly dissipate . . . in the Pacific tides."[317]Similarly, prior appropriation doctrine evolved when the West's population was small, cities were few, and making the desert bloom was not merely a device to strengthen the nation's economy but also an expression of manifest destiny.[318]Many of California's water allocation habits were predicated on the assumption that exploiting rivers was inherently desirable, and entire regions of California have come to accept the consequences of that assumption as the expected status quo.[319]Bureaucratic cultures reflect these views; the agencies that deliver California's water justified their existence by promising large and consistent deliveries, and still often treat delivering as much water as possible as a matter of institutional identity, obligation, and pride.[320]These expectations fuel indignation when environmentalists assert that the status quo is not, and never was, acceptable, and that environmental laws legitimately limit the amount and consistency of consumptive use.
Finally, these problems are compounded by the extent to which water managers, like many environmental managers, must rely on science when adjusting allocations. A common reason for major delivery adjustments is not total physical unavailability of water but rather a judgment that ecological systems cannot sustain further strain.[321]These judgments must be made by often underfunded government scientists, who must predict future conditions of complicated systems based upon limited data and partially unknown chains of cause and effect, and who may be speaking to audiences not cognizant of the prevalence of variability in ecological systems and ambiguity in environmental science.[322]Their determinations are likely to be couched in uncertainties, and even if based on good judgment and careful research may sometimes be wrong.[323]Almost any recommendation for an adjustment will therefore appear highly contestable, and resource users may believe, or at least plausibly argue, that science was manipulated or misused to deprive them of water.[324]
Consequently, rather than viewing their allocations as fundamentally contingent upon, and variable in response to, environmental needs, consumptive water users tend to expect consistency. While cognizant that precipitation varies, they may perceive environmentally required reductions as misguided at best and at worst as bureaucratic confiscations of property.[325]The reasonable use and public trust doctrines, though theoretically providing the state with flexibility to adjust water allocations based on evolving human and environmental needs,[326]are rarely invoked for these purposes, and in practice environmentally based water allocation reductions infrequently occur other than in response to fairly inescapable statutory mandates or payment of public money.[327]That flexibility is not moribund; deliveries do vary substantially from year to year as both availability and demand vary in response to changing weather, and environmental enforcement has compelled major changes in California water allocations.[328]Nevertheless, major environmentally-based adjustments almost invariably induce protracted litigation,[329]and the malleable, adaptive
allocation system created, at least on paper, by California and federal water laws does not match actual practice.
These limitations on flexibility mean that the systems governing California's water try to have it all. Though water is scarce, federal and state rules simultaneously attempt to maximize consumption and increase protection. The system thus encourages environmental managers to do what the basic conceptual framework posited by this Article predicts will be quite difficult, that is, to promote consumption right up to the perceived limits of environmental law, leaving no slack to facilitate adjustment should conditions change. Yet users also demand reliability, and the flexibility that might resolve these conflicts is severely limited by practical and political realities. In the face of environmental uncertainty and dynamism, that approach creates a recipe for conflict.
IV. The Confluence of Tensions-The Bay-Delta Controversy
Hardly a river in California has been immune from the tensions created by scarcity, environmental variability, and an internally inconsistent legal system, but these tensions have been most visible and salient, and perhaps also most important, in the Bay-Delta.[330]The Bay-Delta is literally and figuratively the place where California's water problems flow together.[331]All of the waters draining the Central Valley flow through it, large fish and wildlife populations live within it, and each salmon born in the valley must swim downstream through the Bay-Delta to reach the ocean and back upstream to reach its natal stream and spawn.[332]The Delta itself provides much of California agriculture's irrigation water and is the source of at least some of the drinking water used by approximately two thirds of Californians; management to meet these needs dominates the Bay-Delta's hydrology.[333]Its tributary rivers supply millions more, and because the Bay-Delta's watershed supplies almost everyone in California with some of their water, its fate is inextricably connected with statewide urban water demand.[334]The state's agricultural economy also relies heavily on the Bay-Delta watershed as a sump for return flows, and the Bay-Delta's water quality bears the signature of land use practices throughout much of California.[335]California's water problems, in short, are the Bay-Delta's problems, and the Bay-Delta's fate both depends upon and helps determine water management statewide.
By the late 1970s, the Bay-Delta was showing the strains of these conflicting demands.[336]Federal and state environmental regulators both realized that increasing Delta exports, along with several other important factors, were drastically degrading the Bay-Delta's ecology.[337]For years, however, that realization translated into little protection. The State Water Resource Control Board first set water quality standards that failed to survive judicial review,[338]then set standards that EPA rejected as insufficient to meet basic water quality goals, and then, in the early 1990s, withdrew-on Governor Pete Wilson's orders-standards that initially appeared stronger.[339]EPA, while rejecting the state's efforts as inadequate, set no standards of its own until it was sued, and Reclamation argued it was immune from even the weak standards the state did create.[340]Meanwhile, exports grew, exotic species multiplied,[341]and un-screened diversions and a variety of other human activities throughout the watershed contributed to what EPA described as a "severe and continuing decline of the Bay-Delta's fish and wildlife resources."[342]
California's 1987-92 drought brought conflicts to a head. In the first years of the drought, DWR and the Bureau responded to heightened demand by exporting more water than ever before.[343]But the Fish and Wildlife Service and the National Marine Fisheries Service then listed the Delta smelt and winter-run Chinook salmon, once two of the Bay-Delta's most abundant fishes, as threatened species.[344]EPA accelerated pressure for new state water quality standards and then began drafting standards of its own;[345]and Congress passed the CVPIA,[346]which, among other provisions, mandated re-allocation of 800,000 acre-feet per year to environmental uses.[347]These actions caused a sharp reduction in water contractors' deliveries and an intense political reaction.[348]By the mid-1990s, an all out water war was a real possibility. It seemed perfectly plausible that EPA and the wildlife agencies would attempt, largely in response to environmental groups' advocacy, to further limit water exports and that water users would unite, with tacit support from the state and federal water delivery agencies, to take on the very structure of environmental law, and that urban and agricultural users would simultaneously fight side-battles with each other.[349]
Though much litigation did occur,[350]that all-out water war did not. Several of the major agencies and environmental groups instead signed the Bay-Delta Accord, an agreement that traded temporary reductions in water deliveries for temporary and limited immunity from further regulatory actions.[351]The agencies also began the CALFED process, a collaborative, multi-agency, multi-stakeholder effort to create a new program for sustainable management of the Bay-Delta. Over the next several years, they developed several alternative proposals, and the agencies ultimately issued a joint federal-state record of decision (ROD) in 2000.[352]Following issuance of the ROD, the California Legislature authorized creation of the Bay-Delta Authority, an agency designed to coordinate the CALFED effort, and Congress provided federal agencies with similar-though more limited-legislative authorization to participate in the CALFED process.[353]
CALFED's innovations were many. Most importantly, rather than attempting to reconcile the separately made decisions of agencies with diverging, parochial interests, it attempted to create what Freeman and Farber describe as a "modular" regulatory structure allowing agencies to collaborate and make collective policy choices.[354]CALFED also sought to prioritize information development and stakeholder inclusion; agencies utilized the expertise of water users and environmental groups, while CALFED sponsored scientific research and attempted to rely upon adaptive management.[355]Finally, CALFED tried to please everyone; the program's mantra was that stakeholders should all "get better together."[356]
To achieve these ambitious goals, CALFED developed novel regulatory devices. Attempting to minimize the zero-sum nature of water conflicts, CALFED created an "environmental water account," a system designed to use willing-seller water exchanges to minimize the burdens created by environmental restrictions and to allow flexibility for short-term adjustments in pumping levels.[357]More broadly, the CALFED agencies attempted to design infrastructure and management programs that would allow more pumping in winter, when-in theory-water would be more abundant and less environmentally important.[358]Using substantial funding from stakeholders and several voter-approved bonds, the CALFED agencies embarked on a major ecosystem restoration program, hoping, as one farmer put it, that when "[y]ou redesign the river, you restore it to a more natural functioning, and hopefully you need less water to make the system work the way it's supposed to-everybody wins."[359]CALFED also made large amounts of grant money available to agencies pursuing conservation projects.[360]The rhetoric and writing of the CALFED agencies emphasized adaptive management; rather than irrevocably fixing their future course of action, the agencies defined a broad program, with many desired items but no strict commitment to implementing any particular project, and created a science program designed to facilitate learning and adjustment.[361]These innovations are largely responsible for CALFED's initial reputation, at least in the legal academic literature, as an exemplary process.[362]
Nevertheless, one of the CALFED agencies' core choices created major risks.[363]Managing a dynamic, oversubscribed resource to provide increased consumption, increased protection, and increased reliability is extraordinarily difficult, yet that is exactly what the CALFED agencies attempted.[364]Rather than mandating cuts in consumption, the agencies assessed only programs designed, on the whole, to facilitate export increases,[365]and did so while assuming they would continue pumping water through the Delta.[366]Even in their penultimate environmental study, a policy of reducing overall consumption of Bay-Delta water earned only a terse dismissal in an appendix; the CALFED agencies appear to have believed that so long as some water not legally committed to environmental protection remained in the system, they had no choice but to increase water deliveries.[367]Yet the CALFED agencies also promised environmental recovery-legally, they had no choice-which they proposed to achieve partly through augmentation of environmental flows.[368]They thus proposed to increase consumption and improve environmental conditions, while leaving less unallocated water-less slack-in the system, yet they simultaneously defined increased water supply reliability as one of their core goals, and rhetorically endorsed the importance of achieving a lasting program.[369]These ambitions should be no surprise; the CALFED program merely reflected the underlying policy goals inherent in the state and federal
legal regimes for managing California water. But by attempting to increase consumption, protection, and reliability, the CALFED agencies predicated their program upon a dangerous choice.
Even as the CALFED agencies moved forward with that plan, warning signs abounded. The historic degradation of the Bay-Delta correlated with increased water consumption, and almost every agency report on the Bay-Delta's environmental problems pointed to accelerating water use as a major contributing cause.[370]Some agency biologists were skeptical of an approach founded on increased exports, even if these increases were coupled with ecosystem restoration efforts and selective wet-season pumping.[371]As one biologist put it, "[t]he real problem is too many straws in the water and not enough left in the Delta for habitat."[372]Funding also was tenuous; the environmental restoration projects that the CALFED agencies hoped would compensate for pumping increases would not be cheap, yet the agencies created no funding mechanisms to compensate if state and federal budget allocations ran short.[373]Finally, the inherent dynamism and unpredictability of California's watersheds was no secret. California's water managers were well aware of the state's history of droughts and floods, its susceptibility to earthquakes, and its vulnerability to climate change, and all of these threats, as well as the widely-acknowledged lack of understanding of the Bay-Delta's ecology, ought to have suggested the danger inherent in a program designed to recover the environment and increase the amount and reliability of Bay-Delta water use. Such a program might succeed if brilliantly implemented by resourceful and well-funded managers, and under relatively benign and stable environmental conditions, but its chances of failure seem uncomfortably large.[374]
Despite some successes,[375]inherent fragility quickly began contributing to major problems. In the years following the CALFED decision, pumping increased, though not as much as the agencies had planned.[376]Populations of several pelagic species, several already protected under the federal and state endangered species acts, also plummeted, and the correlation was suspicious at best. As one government scientist observed, "we have this coincidence where entrainments are up, fish populations are down, and water exports are up."[377]The decline was not limited to just a few species; while salmon populations seemed to be doing relatively well, most of the pelagic species that permanently live in the Bay-Delta were in decline, and new species were added to the Bay-Delta's already-long list of threatened or endangered residents.[378]By the spring of 2005, at least some of the agencies responsible for managing the Bay-Delta seemed to recognize that they faced a burgeoning crisis, and state government began a "Delta Vision" process designed to come up with a new plan.[379]Meanwhile, environmental groups, whose confidence in the CALFED process, DWR, and particularly the federal government was almost completely gone, began returning to the courts.[380]
Over the next two years, the pelagic species crisis only worsened. In 2006, surveys of fish populations revealed no improvement, despite another year of fairly benign weather.[381]In 2007, after a dry winter, populations took another nosedive. Annual counts revealed hardly any delta smelt-once the Bay-Delta's most abundant fish-and the largest numbers seen anywhere were the dead fish caught at the DWR's pumps.[382]Almost concurrently, a state court judge ruled that DWR was violating the California Endangered Species Act and threatened to shut down the pumps, and a federal judge ruled that state and federal efforts to comply with section 7 of the federal Endangered Species Act were legally deficient.[383]With few options left, DWR shut down its pumps for one ten-day period, and then resumed pumping at relatively low levels.[384]"Drastic times," DWR's director explained, "call for drastic measures."[385]Those drastic measures now appear to be in place, and may become permanent; on August 31, 2007, a federal judge ordered a temporary pump cutback that state officials predicted would reduce water exports by a million acre-feet per year, and the officials anticipated that the limitations might well become permanent.[386]
Though important, export pumping does not appear to be the exclusive cause of the crisis. Scientists are also evaluating other potential factors, such as pollutant loading and invasive species,[387]and many think a confluence of stresses is the likeliest explanation.[388]Reducing consumption also probably would not be a complete solution; though it could reduce environmental strains, such reductions alone probably cannot recover the Delta to a healthy state.[389]But even if export increases are not the sole problem and reductions should not be the singular focus of long-term solutions,[390]their probable contributing role confirms the danger inherent in attempting to achieve environmental recovery while also increasing an acknowledged source of environmental strain. At best, that approach substantially increased the risk of troubles much