Lessons from California and Perspectives from other Australian States: Reflections on major water reform themes Rebecca Nelson Non-Resident Fellow, Stanford Woods Institute for the Environment Specialist Water Lawyer, Kellehers Australia

April 8, 2015

Major water reform themes

Full implementation of this Agreement will result in a nationally-compatible, market, regulatory and planning based system of managing surface and groundwater resources for rural and urban use that optimises economic, social and environmental outcomes by achieving the following: … ii) transparent, statutory-based water planning; iii) statutory provision for environmental and other public benefit outcomes

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Major water reform themes

Full implementation of this Agreement will result in a nationally-compatible, market, regulatory and planning based system of managing surface and groundwater resources for rural and urban use that optimises economic, social and environmental outcomes by achieving the following: … ii) transparent, statutory-based water planning; iii) statutory provision for environmental and other public benefit outcomes

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Reflecting on these themes, and lessons here and overseas, where

do our major challenges lie?

Mechanics of implementation Comprehensive implementation Going beyond our comfort zone

Background

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Allocation and works decisions

State-level (statutory)

water plans

Supra-state law Australian

water law (generalised, simplified)

How much water can be withdrawn?

How much water can I

withdraw, and where?

Envtl water

Envtl water

Envtl water

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Allocation and works decisions

Water plans

Supra-state law Western US

water law (generalised, simplified)

How much water can be withdrawn?

How much water can I

withdraw, and where?

Envtl water

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A new view from California • History

– State GW reg’n, well locations, metering, rights info

– Voluntary, collaborative plans – Focus on monitoring, “physical solutions” – Consumptive focus – Stringent financial controls; state grants

• Sustainable GW Management Act (2014): “local GW sustainability plans” – No “undesirable results” over 50 yrs – Voluntary tools, works, regulation, fees – Stakeholders, incl. SW users, GDEs

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Water planning

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Challenges in moving beyond planning • Focus on licensing individual extractions • Water right information transparency • Innovations in “physical solutions”

Challenge: Focus on licensing individual extractions • Tick-the-box risk • Groundwater context

– Pumping impacts can be very localised

– Areas of less intensive use may lack (detailed) plans

– Plans often operationalised through licensing

Need for greater academic and (in some cases) agency and practitioner focus

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Challenge: Water right information transparency

• Aust: aggregate accounts, state registers (HEW registers)

vs US: often full individual water rights info

• Significance for trading, compliance, policy assessments

• But: personal and confidential information

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• Current and past owners

• Precise point of diversion

• Reliability • Use • Conditions • Dates • Protests • Transfers • Correspondence • Denied/inactive rights • [Well construction

data] • [Use reports]

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Challenge: Physical solutions

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• Basin Plan: binding cap + rules (+ water recovery, efficiency measures)

• Western US water mgmt: physical tools highly developed – System re-operation – Efficiency measures – Permanent easements

or temp rotating fallowing

– MAR for envtl/ “retiming” outcomes

Tamarack Project, South Platte, CO

Gragnani wetlands, SJ Valley, CA

Providing environmental water

Key challenges • Groundwater context • Water law mechanics • Urban water sustainability

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Challenge: Groundwater context • Wide range of GDEs • NWI: consider GW-SW links; GDEs • Narrow view of GDEs

– Fed Water Act vs Basin Plan – High threshold for recognising

connectivity • Narrow range of mechanisms

– Aust: Simple cap/no-go zone vs western US: more complex offsets, easements, MAR

• Challenges re data, awareness, timing

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Challenge: Water law mechanics

• Environmental water and traditional water law mechanics – Participating in markets – Dealing with costs

• High flows – Access to floodplain land in light of

current and future development – Spill rules

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Challenge: Urban water sustainability

• Little guidance re sustainability objectives (eg ss93-94 Water Act 1989 (Vic)) – “have regard to sustainable mgmt

principles” – “must act as efficiently as possible

consistent with commercial practice” • Alternative water (stormwater,

wastewater) – Rarely defined targets, priorities,

methodologies, transparent reporting – Cost per unit yield can be high – Politics can influence options – Complex institutional relationships, roles

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Take-aways

• Water reform work in Australia is not done • Strong basic framework • Now time to focus on:

– Mechanics of implementation – Comprehensiveness of implementation – Going beyond our comfort zone

• Looking abroad can inspire

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Key references • Rebecca Nelson, “Groundwater, Rivers and Ecosystems: Comparative Insights into Law and

Policy for Making the Links” (June 2013) Australian Environment Review pp. 558-566. • Rebecca Nelson and Meg Casey, “Taking Policy from Paper to the Pump: Lessons on Effective

and Flexible Groundwater Policy and Management from the Western U.S. and Australia” (Water in the West Working Paper, September 2013).

• Erin O’Donnell and Rebecca Nelson, “Mainstreaming Environmental Water Law and Practice” (Centre for Resources, Energy and Environmental Law, Melbourne Law School, October 2013).

• Rebecca Nelson, “Assessing Local Planning to Control Groundwater Depletion: California as a Microcosm of Global Issues” (2012) 48(1) Water Resources Research W01502.

• Rebecca Nelson, “Uncommon Innovation: Developments in Groundwater Management Planning in California” (March 2011) Water in the West Working Paper 1, Stanford University.

• Understanding California’s Groundwater online resource: http://waterinthewest.stanford.edu/groundwater/overview/

Contact: rlnelson@stanford.edu

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