Water

An Epic Era of Change

When a record-breaking drought in the West is followed by record-breaking snow and rainfall, the dramatic whiplash that precedes it is widespread. Lawmakers in Washington, D.C. and Sacramento, local water suppliers, businesses, environmentalists and residents standing ready with hoses-in-hand are all trying to make sense of what this means for both short- and long-term water conservation goals.
 
Our most essential natural resource, the stress on water supplies has never been greater. This point is driven home by all the new laws and regulations being passed in an effort to fairly and carefully capture, store, transport, share, sell, treat and use something often referred to as “liquid gold.”
 
There’s never been a time in our history where there are so many water issues confronting us at once. To say the water law situation is “fluid” is not just a pun — it is a valid metaphor to describe our continually changing and evolving approach to water. The differentiation between water supply and water quality is rapidly disappearing, as those two aspects of water are now intricately intertwined. Likewise, the crossover between water supply and water rights has never been more pronounced than now.
 
The drought in the West and water shortages in other parts of the United States have left their legacy. We know we cannot afford to use water once and throw it away. We have to find a way to stretch this limited resource and, in so doing, we are realizing that the key is to clean it up and use it again… then clean it up and use it again. We have to adjust to where we live, as the water supply is not going to adjust to us. When we try to ignore the constraints on this resource, catastrophe can strike: the ground sinks, dams overflow and our infrastructure becomes overburdened and breaks.

We now live in an era of change and uncertainty and those in the water community must closely monitor the changes and explore every option available. There are trends emerging in an effort to address the competition, including privatization, mitigation, regionalization and integration of operations. The growing focus on creating technology to improve water recycling efforts is paying off, as it is developing rapidly. But, with nearly 100 years of water law experience, Best Best & Krieger knows that the key to solving this puzzle is the least technological and — sometimes — the most difficult strategy there is: relationships.

BB&K's Deep Water Roots

BB&K’s water roots run deep, dating back to the early 1930s and 1940s. James Krieger was instrumental in the State Water Project’s development before the water law torch was passed on to others. This includes Arthur Littleworth, who served as a United States Supreme Court special master for an interstate dispute between Kansas and Colorado, and Managing Partner Eric Garner, who has authored the “California Water” series and works locally and abroad with lawmakers in creating impactful legislation.

Whether it’s being pumped, captured, transported or treated for use or re-use, the ways in which we get water are as varied as our uses for it. From California and the West, where periodic droughts are expected to be more severe, to areas where once predictable rainfall will likely become less certain, water suppliers must look toward solutions — even in the wettest years.

After a winter of snow-packed mountains and overflowing reservoirs, the State Water Board initially announced in early 2017 it would extend emergency water conservation regulations throughout California. Then, in the spring, after Gov. Jerry Brown’s announcement that he was ending the drought state of emergency, the Board rescinded the water supply stress test requirements and remaining mandatory conservation standards for urban water suppliers. The action transitions the State to a permanent framework for making water conservation a California way of life, and prohibitions against wasteful water use practices and requirements for monthly water use reporting remain in place. Because of the unpredictability of water availability and supply, public agencies should adopt and implement robust and forward-looking rate structures, in compliance with Proposition 218, that allow flexibility in the event of water emergencies.
 
But conservation is only one piece of the water puzzle. To avoid future shortages, there must be emphasis on water capture and storage. With public infrastructure a priority for state and national lawmakers, water suppliers must focus on planning and funding now.
 
The California Water Commission is already approving grants from the $2.7 billion fund for water storage projects under Proposition 1, passed by voters in 2014, according to Commission member and BB&K Partner Joseph Byrne. In addition, the Water Infrastructure Improvements for the Nation Act, passed by Congress and signed by former President Barack Obama in late 2016, authorizes vital water projects, including watershed restoration and improved waterways and flood control and drinking water infrastructure. Then, there’s President Donald Trump’s promise of $1 trillion in federal infrastructure funding. Gov. Jerry Brown is working with the California Natural Resources Agency to identify water infrastructure investments. These include recycling, flood protection, pipelines and other infrastructure to increase the capture, treatment and delivery of water to homes, businesses and farms, as well as ensure adequate supply for endangered fish species.  

BB&K Government Relations Team Helps Client Secure Federal Grant for Water Project

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Private investments, including public-private partnerships, are just one of the innovative funding strategies public agencies can use to build much-needed projects. If done correctly, these partnerships can be beneficial for the investing companies and the partnering public agencies — as well as for the water customers who get quality, needed water at a fair price. This is in addition to traditional public finance methods, including revenue bonds, certificates of participation and other tools for public debt.

Environmental Permitting

For decades, a water issue was just a water issue. But now, water is an inter-disciplinary environmental issue that must include consideration of the Endangered Species Act, the Clean Water Act, the Safe Drinking Water Act, the California Environmental Quality Act and the National Environmental Policy Act. Whether you’re planning to fill a water body or drain it, divert it, use it conjunctively or process it, almost any operation or application triggers an environmental permitting process

It is a fundamental expectation in a modern society that people are able to turn on the tap and have safe, potable water. But when we trace back through the pipes to see how and where this seemingly simple act begins, we are confronted by a flood of complex laws and regulations. From clean drinking water to healthy waterways safe for fish and other wildlife, there is a myriad of local, state and federal laws designed to protect this vital resource. Often, though, they are at odds with each other or other regulations.
 
The litigation over how “Waters of the U.S.” is defined in the Clean Water Act will result in significant impacts on how certain bodies of water are treated under the Act. Identifying which waters are subject to the “fishable, swimmable and drinkable” standard has been a struggle since the CWA was adopted in 1972. Depending on how the courts define the Rule, waters previously omitted from the CWA standard may require permitting and mitigation.
 
Meanwhile, communities across the nation are struggling with non-potable drinking water. Whether it’s temporary, isolated instances of contaminated water or persistent episodes that span years and impact thousands, our aging and unsafe water infrastructure is being blamed for these dangerous conditions. Laws and rules will not fix what’s broken. Prioritization and dedicated resources are what’s needed. Good relationships, communication and savvy, knowledgeable negotiation will get us there.

When the California Legislature passed, and Gov. Jerry Brown signed, the Sustainable Groundwater Management Act in 2014, their aim was to create, for the first time in State history, a plan to comprehensively manage groundwater resources. SGMA, as it’s known, emphasizes local discretion and control, but requires local public agencies to join together to manage the most heavily used, unadjudicated groundwater basins. So now, instead of simply competing with each other over use and control of this precious resource, agencies will work together. The relationships are taking agencies out of some of their silos as they shift toward regionalism and integration of operations in creating systems that work better.
 
The water community’s evolution from “every pumper for himself” to collaboration is also being driven by the reality of groundwater adjudications. These disputes over groundwater rights last years and are costly. Recognizing that, despite SGMA, the competition for groundwater could lead to more adjudications, state lawmakers followed up SGMA with a series of additional bills aimed at streamlining groundwater basin adjudications and aligning them with SGMA requirements.  

Water Rights

Whether agencies are forming groundwater sustainability agencies or in a dispute over water rights, BB&K attorneys are national leaders in advising and resolving water-related issues. Learn more about our successful work for the City of Santa Maria and the County of Los Angeles Waterworks District No. 40 in the Antelope Valley Groundwater Adjudication.

This evolution has come at a critical time. Over-pumping of groundwater during the recent drought is one of the factors leading to land subsidence throughout California’s Central Valley. This subsidence has even created “chokepoints” along the 444-mile California aqueduct, according to reports, hindering water transportation (read more about water infrastructure under the “Supply” tab above).

Water is a unique resource. The layers of complexity around its use and management are unparalleled. Furthermore, because it is a shared resource, it is also essential that entities create successful long-term relationships. Only with an understanding of the many ongoing regulatory changes and long-term partnerships can an entity hope to achieve its water management goals.

Steve M. Anderson

Steve M. Anderson

Partner

(951) 826-8279

Areas of Focus: Endangered Species | Environmental Law & Natural Resources | General & Special Counsel | Municipal Law | Special Districts | Water
Russell G. Behrens

Russell G. Behrens

Partner

(949) 263-6569

Areas of Focus: Environmental Law & Natural Resources | Environmental Litigation | General & Special Counsel | Public Agency Litigation | Special Districts | Water
Joseph P. Byrne

Joseph P. Byrne

Partner

(213) 617-7496

Areas of Focus: Environmental Law & Natural Resources | General & Special Counsel | Government Policy & Public Integrity | Municipal Law | Special Districts | Water
Sonia Rubio Carvalho

Sonia Rubio Carvalho

Partner

(949) 263-2603

Areas of Focus: Economic Development, Real Estate & Affordable Housing | Elections | Government Policy & Public Integrity | Municipal | Public Contracts & Construction
Matthew Collins

Matthew Collins

Associate

(951) 826-8246

Areas of Focus: California Environmental Quality Act (CEQA) | Endangered Species | Environmental Law & Natural Resources | National Environmental Policy Act (NEPA) | Water
Paula C. P. de Sousa Mills

Paula C. P. de Sousa Mills

Partner

(619) 525-1328

Areas of Focus: Environmental Law & Natural Resources | General & Special Counsel | Local Agency Formation Commission (LAFCO) | Municipal Law | Public Contracts & Construction | Special Districts
Jeffrey V. Dunn

Jeffrey V. Dunn

Partner

(949) 263-2616

Areas of Focus: Economic Development, Real Estate & Affordable Housing | Environmental Litigation | Municipal Law | Public Agency Litigation | Special Districts | Water
Jeffry F. Ferre

Jeffry F. Ferre

Partner

(951) 826-8271

Areas of Focus: Environmental Law & Natural Resources | General & Special Counsel | Government Policy & Public Integrity | Municipal Law | Public Contracts & Construction | Special Districts
Sarah Christopher Foley

Sarah Christopher Foley

Associate

(213) 787-2560

Areas of Focus: Endangered Species | Environmental Litigation | Municipal Law | Special Districts | Water | Water Quality | Water Rights
John D. Freshman

John D. Freshman

Senior Director of Governmental Affairs*

(202) 370-5301

Areas of Focus: Air Quality | Endangered Species | Environmental Law & Natural Resources | Government Relations | Hazardous Waste | Water
Paeter E. Garcia

Paeter E. Garcia

Partner

(213) 787-2543

Areas of Focus: Environmental Law & Natural Resources | Environmental Litigation | General & Special Counsel | Special Districts | Water
Eric L. Garner

Eric L. Garner

Partner

(213) 787-2561

Areas of Focus: Environmental Law & Natural Resources | Environmental Litigation | Municipal Law | Special Districts | Water | Water Rights
Shawn D. Hagerty

Shawn D. Hagerty

Partner

(619) 525-1327

Areas of Focus: Environmental Law & Natural Resources | Municipal Law | Special Districts | Water | Water Quality
Robert Hargreaves

Robert Hargreaves

Partner

(760) 837-1604

Areas of Focus: General & Special Counsel | Government Policy & Public Integrity | Municipal Law | Renewable Energy | Water
Kira Johnson

Kira Johnson

Water Policy Analyst

(213) 787-2556

Areas of Focus: Environmental Law & Natural Resources | Water | Water Quality | Water Rights
Deborah J. Kollars

Deborah J. Kollars

Associate

(916) 551-2823

Areas of Focus: Education Litigation | Environmental Law & Natural Resources | Municipal Law | Special Districts | Water
Miles B.H. Krieger

Miles B.H. Krieger

Associate

(951) 826-8215

Areas of Focus: Environmental Law & Natural Resources | Municipal | Special Districts | Water
Steven G. Martin

Steven G. Martin

Associate

(619) 525-1314

Areas of Focus: Environmental Law & Natural Resources | Environmental Litigation | General & Special Counsel | Government Policy & Public Integrity | Special Districts | Water
Andre Monette

Andre Monette

Partner

(619) 525-1374

Areas of Focus: Education Law | Environmental Litigation | Water | Water Quality
Michelle Ouellette

Michelle Ouellette

Partner

(951) 826-8373

Areas of Focus: California Environmental Quality Act (CEQA) | Endangered Species | Environmental Law & Natural Resources | Environmental Litigation | Municipal Law | National Environmental Policy Act (NEPA)
Sarah E. Owsowitz

Sarah E. Owsowitz

Of Counsel

(925) 977-3308

Areas of Focus: California Environmental Quality Act (CEQA) | Environmental Law & Natural Resources | Environmental Litigation | Renewable Energy | Water
Lindsay D. Puckett

Lindsay D. Puckett

Partner

(619) 525-1378

Areas of Focus: California Environmental Quality Act (CEQA) | Endangered Species | Environmental Law & Natural Resources | National Environmental Policy Act (NEPA) | Water
Michael T. Riddell

Michael T. Riddell

Partner

(951) 826-8210

Areas of Focus: Environmental Law & Natural Resources | Government Policy & Public Integrity | Municipal Law | Special Districts | Water
Kelly J. Salt

Kelly J. Salt

Partner

(619) 525-1375

Areas of Focus: Municipal Law | Public Finance | Special Districts | Water
Charity B. Schiller

Charity B. Schiller

Partner

(951) 826-8223

Areas of Focus: California Environmental Quality Act (CEQA) | Environmental Law & Natural Resources | Environmental Litigation | National Environmental Policy Act (NEPA) | Special Districts | Water
A. Haviva Shane

A. Haviva Shane

Of Counsel

(951) 826-8289

Areas of Focus: Municipal Law | Public Contracts & Construction | Special Districts | Transportation | Water
Ward H. Simmons

Ward H. Simmons

Of Counsel

(951) 826-8366

Areas of Focus: Endangered Species | Environmental Law & Natural Resources | General & Special Counsel | Municipal Law | Special Districts | Water
Gene Tanaka

Gene Tanaka

Partner

(925) 977-3301

Areas of Focus: Environmental Law & Natural Resources | Environmental Litigation | Hazardous Waste | Public Agency Litigation | Water
Roderick E. Walston

Roderick E. Walston

Of Counsel

(925) 977-3304

Areas of Focus: Endangered Species | Environmental Law & Natural Resources | Environmental Litigation | Water
Wendy Y. Wang

Wendy Y. Wang

Of Counsel

(213) 787-2554

Areas of Focus: Environmental Law & Natural Resources | Environmental Litigation | Municipal Law | Public Contracts & Construction | Special Districts | Water
Deborah A. Wordham

Deborah A. Wordham

Of Counsel

(213) 787-2542

Areas of Focus: Environmental Law & Natural Resources | Environmental Litigation | Municipal Law | Public Agency Litigation | Special Districts | Water

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