Cynthia Koehler is Senior Consulting Attorney for EDF.

The California Legislature is on the cusp of voting for an historic water deal. The Senate could vote within the next few days. And as the famous saying goes, there are two things that you don’t want to watch: sausage making and the legislative process. The latest attempted additive to the sausage: an amendment that would jeopardize the long-standing and foundational water law premise that requires that all water use in California be “reasonable” and not wasteful.

For the better part of a century, California–like most of the Western U.S.– has followed the law of “reasonable use,” that requires all water use in the state must be “reasonable” and not wasteful. Conservation of water is at the very heart of any reasonableness determination: “[W]hat is a reasonable use of water depends on the circumstance of each case, [and] such an inquiry cannot be resolved in vacuo isolated from statewide considerations of transcendent importance. Paramount among these we see the ever increasing need for the conservation of water in this state, an inescapable reality of life quite apart from its express recognition in [Art. 10, Sec. 2].” Joslin v MMWD, 67 Cal. 2d 132, 140 (1967).

The water bill under consideration in the California Legislature establishes water conservation targets for urban areas and provides a number of pathways to get there. The Republican alternative bill would provide that the failure to meet those targets could not be used as evidence of waste or unreasonable use of water–forever. In other words, “here’s a conservation target, but don’t worry too much about meeting it, we won’t use it against you…”

Do we truly want to set California on a course for smarter water use, efficiency and conservation or just give it lip service?

Why are some lawmakers trying to prevent the new conservation standards from applying to the long-standing reasonable use and anti-waste rules? The claim is that the conservation targets could lead to a “floodgate of litigation.” But this is not compelling. Water agencies are already required to use water reasonably and to conserve. The State Water Resources Control Board has confirmed that cases challenging water use are extremely rare. Nothing in the proposed bill establishes a new cause of action for lawsuits.

Professors Joe Sax and John Leshy, among the country’s most prominent water law professors have weighed in (PDF) on the waste and reasonable use language. In their view: "Properly, nothing in the bill before you suggests that the mere failure to meet the targets is per se evidence of waste. Similarly nothing should mandate that such failure is per se reasonable"

We hope the Legislature takes heed. There is nothing to gain, and much to lose, from tampering with California’s entirely appropriate reasonable use laws. This amendment is one tainted ingredient in the sausage that we can do without. For more on the unreasonable use and water conservation issue, please read Bettina Boxall’s recent article in the Los Angeles Times.

Spreck Rosekrans is an Economic Analyst at EDF.

Groundwater is one of the more contentious aspects of the water reform legislation currently under consideration in Sacramento. Some legislators have indicated that they would not sign the bill if it contains even modest language requiring that groundwater levels be monitored.

This makes no sense to us. Reasonable people may differ on how much groundwater should be pumped in any particular region under certain conditions. But to have no limits at all assures a “race to the bottom”, akin to two hungry kids, each with a straw, sharing a single milkshake. Moreover, where is the incentive for a landowner to replenish groundwater supplies in wet years, if neighbors can extract it with impunity?

As Legislative Analyst Catherine Freeman pointed out at yesterday’s hearing, California is the only state that does not monitor groundwater. The other 49 states understand that good water policy demands some public involvement in groundwater. Given the need to stretch limited supplies among California’s farms, families and fish, and that as much as 40% of statewide supply comes from groundwater in drought years, it is embarrassing that we have no statewide policy for managing groundwater. (Click here for a copy of the LAO's 2008 report on groundwater.)

In much of the State, the groundwater situation is not so dire. Urban districts throughout the State currently “bank” water underground with the Semitropic Water Storage District in Kern County. And landowners and local agencies throughout much of the urban southland have cleaned up groundwater supplies and are working together to manage aquifers sustainably.

But in some areas, groundwater is often described as the “wild west” – i.e. lawless.

The proposed legislation takes only baby steps. It does not regulate groundwater. It seeks only to monitor its use to enable better management and decision-making. To ensure realiable water supply in California, the groundwater element of the legislative package must be retained.

Spreck Rosekrans is an Economic Analyst at EDF.

Our water system isn't working for anyone – not for cities, not for farms, and certainly not for fish. For the first time in over a decade, the California legislature has a chance to address our outdated water system and our broken Bay-Delta ecosystem. At the end of the last legislative session, a water policy package was put forward that proposed critical steps needed to provide a resilient water supply for all Californians and badly needed environmental protections as well.

Like others in the environmental community, EDF stretched to come to agreement in Senate Bill 68 as introduced, as it already includes a substantial set of compromises that would not be our first policy choice.

We, nevertheless, supported the package as introduced on September 11th because we believe strongly that its provisions have the potential to break the cycle of conflict and environmental damage that have plagued California’s water management system for decades.

We are pleased to see that the Governor has called for a special legislative session dedicated to passing strong water policy. Our support for a final package is dependent on retention of the following critical elements:

1. Getting enough water into the Bay-Delta – Sets a clear course of action to determine and provide critical water flows for the health and long-term sustainability of the Delta ecosystem.

2. Reducing reliance on the Bay-Delta – A landmark change in policy that shifts from an emphasis on Delta water supply to improving conservation, recycling, and other local sources of water.

3. Tools for halting illegal diversions – Expands the State Water Resources Control Board's authority to halt illegal diversions ensuring fair, smart water use throughout the state

4. Moving the Bay Delta Conservation Plan to environmental success – Details a framework for the BDCP that will help result in stronger protections for the Bay-Delta ecosystem in a timely manner.

5. Ensuring smart groundwater use – Substantially expands groundwater management and monitoring efforts to ensure long-term sustainability.

Spreck Rosekrans is an Economic Analyst at EDF.

The 2009 water year ended this week amidst a plethora of activity, conflict and entertainment.

On Tuesday, as NASA rocket scientists were talking water in Pasadena, Comedy Central’s Jon Stewart responded to Fox News’ Sean Hannity on the Daily Show.

On Wednesday, PacifiCorp agreed to terms for removing four controversial dams on the Klamath River.

On Thursday, after years of litigation and negotiation spearheaded by our colleagues at NRDC, releases from Friant Dam to the San Joaquin River were made–rewetting a riverbed that is often dry as a result of over-extraction of surface and groundwater supplies.

For followers of the Bay-Delta, the stage shifted to the Department of Interior’s hearing in Washington DC. There was plenty of conflict over the Endangered Species Act, despite letters of support for the law by the California’s Department of Water Resources and the Metropolitan Water District of Southern California. And both the Obama Administration and Senator Feinstein, as well as we at the Environmental Defense Fund, issues statements in support of review of the ESA’s Biological Opinions by the National Academy of Sciences.

Meanwhile the Obama Administration also recommended that the California Legislature enter into a special session to move forward with reform of water policy in California.

We at EDF hope to make progress on legislation in this new water year as well, and are committed to working with all stakeholders to better manage California’s limited water supplies for our cities, farms and natural environment

And we are hoping “wild and wooly” in 2010 will apply to wet weather and not to policy reform.