For the last few winters, forecasters have seen promising El Niño conditions form in the Pacific, only for the conditions to fizzle in 2013 (jokingly referred to as “la nada”) and again in 2014. For this winter, scientists now have no doubt that El Niño conditions will remain in the Pacific – the only questions are when the rains will begin and how severe they will be. According to the latest NOAA readings, current average temperatures in the Southern Pacific (dubbed “Region 3.4”) are 3.0 degrees centigrade above normal, which is higher than the 2.8 degrees above normal that the 1997-98 El Niño pattern saw at its peak during the week of November 26, 1997. The strength of the current El Niño conditions have led some scientists to dub the pattern as “Godzilla,” and some scientists predict that the conditions could bring a wave of very strong storms to the Western United States this winter.

But despite the promising precipitation forecasts, policymakers continue to warn that one winter of heavy rainfall even in the best circumstances will not reverse the effects that the years of drought in California. Earlier this week, Governor Brown extended the Executive Order that established mandatory water rationing and other water restrictions throughout the state. The Executive Order will remain in effect through October 2016 if California still has drought conditions in January. (This scenario is a possibility even in an El Niño year as February and March usually bring the highest amounts of precipitation). So even with a soaking winter, Californians will likely still have to make due with a water system that has not fully recovered from the four-plus years of punishing drought.  In my last post, I wrote about how a combination of inefficient markets, perverse incentives and regulatory hurdles caused challenges for water districts to plan for its customers’ future water needs. But are there solutions to these challenges? In this piece, I will review a few potential ways that California can streamline both its water rights and environmental regulations to promote water storage projects and increase efficiencies in water markets.

Streamlining the Tangled Web of California Water Rights

If the four-year drought in California showed us one thing, it is that California’s system of water rights is mind-bogglingly complex, and all water rights are not created equally. For example, during the drought, farmers in the Imperial Irrigation District that receive water supplies from the Colorado River faced no cutbacks. On the other end of the spectrum, farmers with contracts from the Central Valley Project received no water from the system for the last two years, and a few of the system’s end users are concerned that the Bureau of Reclamation will crimp supplies again next year. Further, there is little transparency among water rights holders as to how much water they are actually diverting. The Desert Sun reports that senior water rights holders currently have to report how much water they have diverted once every three years (though this will soon change to once every year). Further, the article points out that loopholes in reporting requirements make it very difficult for the State Water Resources Control Board to get an accurate picture on how much water rights holders across the state are diverting. On the topic, Holly Doremus, an environmental law professor at the University of California, Berkeley said, “We have a surprisingly bad handle on how much water is actually used, by whom, at what point and for what.”

The issue of water rights is a politically thorny issue. Senior water rights holders sued the State Water Resources Control Board this summer after the Board issued sweeping water rights curtailment orders for both senior and junior water rights holders. Some water rights holders fear that regulatory reforms may only lead to a reduction in their supplies. Thomas Holyoke, a water politics expert at California State University, Fresno said, “Everybody with senior water rights has a huge interest in keeping the system exactly the way it is, even if it means hurting other people — which it does. Everybody is retreating into the corners they have, and arming themselves legalistically to defend what little water they still have.”

With the contentious nature of water rights reform, are there any practical potential solutions? First, the State Water Resources Control Board should have access to much better data about how much water rights holders are diverting. Water regulators cannot determine the extent of the water supply challenges they face without accurate data. Second, the state should facilitate a water trading system so that water can be transferred efficiently if certain owners or districts have surplus supplies and want to sell them. The Public Policy Institute of California issued an interesting report recently about proposed water reforms in the state. They argue that the fragmented nature of the water rights system, as well as the complicated ruled to use the state’s water infrastructure hampers the trade of water between districts with excess supply and end users that need it the most. Some of the reforms the PPIC suggest include:

• Provide blanket permitting for transfers within regions so that water districts within the same region do not have to go through multiple permitting approvals to transfer water
• Expedite water transfers below a certain size threshold
• Encourage the capture and storage of floodwater during significant rain events

Environmental Law Reforms

Environmental reforms also are an important but politically contentious topic. Lawsuits over the California Environmental Quality Act (CEQA) have stopped water projects’ implementation for years while the courts hear arguments. The Carlsbad Desalination Plant in San Diego for example took close to a decade for the project to receive approval of its Environmental Impact Report (EIR) and to settle the lawsuits environmental groups filed. While CEQA serves a purpose and environmental needs are important to consider especially in times of drought, the law too often is a tool for interests to stop projects and adds costs to the end users. Streamlining CEQA to promote projects such as increased groundwater storage and stormwater capture could go a long way to helping California capture water supplies when they are available and put less of a strain on the system when drought hits and supplies are tight.

Water is a politically contentious issue, and substantive reforms to the water rights system or CEQA will not happen overnight. But it is incumbent on our elected officials to have these discussions and determine what reforms are politically feasible to enact. While we cannot stop droughts from occurring in the future, the actions we take now can mitigate some of the negative effects that they will cause in the future.