California Water:
Current Issues and Impacts on Tribes
Presented to California Indian Bar
Association
October 17, 2014
Heather Whiteman Runs Him
Staff Attorney, Native American Rights Fund
California Water and Tribal Nations
• Historical Background
• Recent Developments and Emerging Tribal Role in
Resource Management
– California Groundwater Legislation
– Human Right to Water in California Law
• Emergency Planning and Response
– Drought
– Flood
– Climate Change
California Water and Tribal Nations
• Northern California Tribal Water Issues
– Instream Flows
– Competition for Scarce Supplies
– Infrastructure Issues
• Southern California Tribal Water Issues
– Water Scarcity
– Funding Challenges and Infrastructure
– Litigation/Finality
Recent Developments:
Groundwater Legislation
• Signed into law by Governor Brown on 9/16/14.
• Provides for statewide oversight with local
responsibility for groundwater management.
10720.3.
(a) This part applies to all groundwater basins in the
state.
(b) To the extent authorized under federal or tribal
law, this part applies to an Indian tribe and to the
federal government, including, but not limited to,
the United States Department of Defense.
Recent Developments:
Groundwater Legislation
(c) The federal government or any federally recognized Indian
tribe, appreciating the shared interest in assuring the
sustainability of groundwater resources, may voluntarily agree
to participate in the preparation or administration of a
groundwater sustainability plan or groundwater management
plan under this part through a joint powers authority or other
agreement with local agencies in the basin. A participating
tribe shall be eligible to participate fully in planning, financing,
and management under this part, including eligibility for
grants and technical assistance, if any exercise of regulatory
authority, enforcement, or imposition and collection of fees is
pursuant to the tribe’s independent authority and not
pursuant to authority granted to a groundwater sustainability
agency under this part.
Recent Developments:
Groundwater Legislation
(d) In an adjudication of rights to the use of groundwater,
and in the management of a groundwater basin or
subbasin by a groundwater sustainability agency or by the
board, federally reserved water rights to groundwater
shall be respected in full. In case of conflict between
federal and state law in that adjudication or
management, federal law shall prevail. The voluntary or
involuntary participation of a holder of rights in that
adjudication or management shall not subject that holder
to state law regarding other proceedings or matters not
authorized by federal law. This subdivision is declaratory
of existing law.
Recent Developments: Human Right
to Water under California State Law
• California Assembly Bill 685 added to the California Water
Code, as section 106.3, "the established policy of the state
that every human being has the right to safe, clean,
affordable, and accessible water adequate for human
consumption, cooking, and sanitary purposes.“
• Conceptualized as an individual, not a collective right.
• However, it is unclear what impact this right would have
socially and economically. Who is going to enforce this
right? How are they going to enforce it? Against whom?
What remedy should there be for a violation of the right?
• Specific issues of unrecognized and newly recognized tribes
need to be addressed.
• Contrast with UNDRIP and other international human rights
standards.
Recent Developments:
Emergency Planning and Response
• Stafford Act Amendments and Tribal
Governments.
• Role of Climate Change in Resource
Management and Infrastructure Planning.
• Role of Water in Emergency Response
Planning.
Current Issues: Emergency Planning
and Response
• Planning and Certainty
– All water users need to be able to plan for water future
– Unquantified tribal rights present a huge unknown, and
prohibit effective and accurate planning
– Tribes need to know water will be available to build
infrastructure and economy without threats to future
supply
– Tribal rights have historically been violated, and there is a
need for certainty and ability to enforce rights against offreservation uses that threaten the viability of tribal rights.
• Emergency Preparedness
Questions?