Increased restrictions or new water availability? What we can count on is change.

California State Water Resources Control Board Response to Climate Change in Permitting Process

Deadline to Provide Comments: March 31, 2021

Climate change is rapidly altering California’s hydrology. The wet season is expected to become shorter and wetter, while the dry season longer and drier. As temperatures rise, California will see more precipitation fall as rain instead of snow, reducing natural storage in mountain snow pack. Warmer temperatures cause snow to melt earlier in the spring. Less snowmelt runoff also reduces the amount of cold-water habitat for native fish.

To address California’s increasing climate concerns, the Division of Water Rights within the State Water Resources Control Board released a staff report on Feb. 4, 2021, with recommendations to make water availability analysis for permitting new water rights more robust and responsive to climate change (Recommendations for an Effective Water Rights Response to Climate Change). The comment period, including opportunity to provide input on data sources, approaches and recommendations runs until March 31, 2021.

Key recommendations include:

• Rely on climate change data in new permitting decisions by conducting water availability analyses using existing climate tools such as those developed by the Department of Water Resources (DWR) pursuant to the Sustainable Groundwater Management Act and California’s Fourth Climate Assessment; including climate change adaptive permit terms; requiring tiered climate change analysis in new applications; and providing climate data fact sheets to applicants advising them to consider climate change impacts on water availability. (Page 24‒25.)

• Account for climate change when evaluating whether a stream is fully appropriated by using a longer streamflow record to capture variability; expanding the network of stream and precipitation gages; reevaluating estimation methodologies for unimpaired flow in ungaged watersheds; modifying instream criteria and metrics to better protect anadromous fish; and revising the Fully Appropriated Stream (FAS) List (State Water Board Resolution No. 98-08). (Page 25‒26.)

• Respond to changing precipitation patterns (i.e., floods and droughts) by developing clear curtailment methodology during drought, including instream flow recommendations, and building on DWR’s efforts to update hydrology projections to capitalize on capturing flood flows for underground storage (Page 26‒27).

• Collaborate with other agencies and partners to pursue joint projects and research, to share information and to support opportunities to meet legal standards in creative ways (e.g., voluntary agreements). (Page 27.)

The staff recommendations are intended to improve the information upon which permitting decisions are made. Depending on which recommendations are selected by the State Water Board and how they are implemented, new permit applicants may become subject to increased permit restrictions and application requirements. On the other hand, the State Water Board’s incorporation of one or more of these recommendations in its water availability analysis may also result in the identification of water supplies that were previously unavailable under the current data and methodologies. Clear understanding of potential climate impacts to water availability is necessary to reduce or avoid the potential that permitted water rights cannot be satisfied in the future.

These recommendations represent a menu of options for the State Water Board to address the impacts of climate change on the availability of water in its permitting process. It is not yet clear which the State Water Board will pursue. Interested parties are encouraged to provide comments.

Brownstein will continue to monitor any amendments of the State Water Board’s water right application process and requirements.

Authors

Stephanie Hastings, Shareholder; Laura Yraceburu, Associate