Rivers of Diversity: Evolving Water Regulation in California and the European Union
Gabrielle Bouleau (1), Matt Kondolf (2)
(1) UMR G-EAU, Cemagref, 361 rue Jean-François Breton, F-34196 Montpellier, France
gabrielle.bouleau@cemagref.fr
(2) LAEP, University of California, Berkeley, kondolf@berkeley.edu
1. Introduction
Aquatic and riparian areas have long been recognized as biodiversity ‘hotspots’ in the
landscape, and thus have been the focus of many environmental regulations. Principal threats
to aquatic biodiversity have been water quality degradation from pollution, morphological
modifications and reduction in water quantity from diversions for human uses. Adequate
flows in rivers are increasingly recognized as essential to maintain or restore aquatic
ecosystems1, and such ecosystem flows must be implemented in the context of water rights.
With changes in runoff regimes anticipated from climate change, threats to aquatic
biodiversity will be severe if water rights and regulations established in past eras cannot be
modified to reflect emerging objectives of biodiversity and ecosystem health2. Rivers and
their floodplains support a wide range of conditions (reflecting variations in vegetation,
substrate, groundwater levels, frequency and seasonality of inundation, and microclimate),
which in turn provide a wide range of habitats and thus support many, diverse species.
Riparian zones are arguably the most diverse parts of many landscapes3. From a human
perspective, rivers and floodplains have multiple functions besides supporting biodiversity:
water supply, flood storage and conveyance, groundwater recharge, improvement of water
quality, and corridors for wildlife migration. Artificial changes to river morphology (such as
straightening for navigation or drainage) reduce habitat complexity. Water diversions reduce
river flows, commonly reducing available aquatic habitat, and in extreme cases, drying out
rivers. Even less extreme reductions in flows can affect water quality by affecting temperature
and reducing dilution of contaminants. The combination of such pressures threatens
biodiversity. Regulations targeting water quality have also implications on water quantity
through these linkages.
To find inspiring examples of regulatory adaptation, scholars often look to comparisons
among developed countries of the European Union (EU) and states of the United States of
America (US), notably California4. Political analysts5 and environmental historians6 have
1
G. Mathias Kondolf et al., "Process-Based Ecological River Restoration; Visualizing Three-Dimensional
Connectivity and Dynamic Vectors to Recover Lost Linkages," Ecology and Society 11, no. 2 (2006), N LeRoy
Poff et al., "River Flows and Water Wars: Emerging Science for Environmental Decision Making," Frontiers in
Ecology and the Environment 1, no. 6 (2003), N. Ward, P. Lowe, and H. Buller, "Implementing European Water
Quality Directives: Lessons for Sustainable Development," in The Politics of Sustainable Development, ed. S.
Baker, et al. (London: Routledge, 1997).
2
Joseph B. Knox and Ann Foley Scheuring, Global Climate Change and California: Potential Impacts and
Responses (University of California Press, 1991).
3
Robert J. Naiman et al., Riparia: Ecology, Conservation, and Management of Streamside Communities
(Amsterdam: Elsevier Academic Press, 2005).
4
David Vogel, "The Hare and the Tortoise Revisited: The New Politics of Consumer and Environmental
Regulation in Europe," in Environmental Policy in the European Union, ed. Andrew Jordan (Earthscan, 2005).
5
Philipp Genschel and Thomas Plumper, "Regulatory Competition and International Co-Operation," Journal of
European Public Policy, Volume 4, Issue 4 December 1997 , pages 4, no. 4 (1997), Giandomenico Majone,
Regulating Europe (Routledge, 1996), Aseem Prakash and Matthew Potoski, "Racing to the Bottom? Trade,
Environmental Governance, and Iso 14001," American Journal of Political Science 50, no. 2 (2006), Sebastiaan
Princen, "Trading up in the Transatlantic Relationship," Journal of Public Policy, no. 24 (2004), David Vogel,
1
recognized the EU and California as cutting-edge regulators for the environment. Yet, apart
from general statements on economic wealth and cultural green awareness, common
explanations for their regulatory innovation have not been articulated.
This paper shows that the EU and California have experienced similar challenges in the
politics of water that may account for their regulatory innovation. In order to justify the
relevance of the comparison, we start by laying out the institutional and political context of
our case-studies. We then argue that California’s water law is predicated upon water
efficiency. We show that competing definitions of efficiency arose as population grew and the
relative importance of various economic sectors evolved. However, as we describe the
resulting situation today, there are shortcomings in implementation of doctrines and this may
hamper adaptation to climate change. We then turn towards the EU using France as an
example of a Member State. We show that water allocation in France mainly results from
historical governmental choices in which efficiency was never assessed by external review.
Facing strong and conflicting interests in water supported by powerful economic states, the
EU’s regulation of water is similarly based on efficiency assessment. We conclude with a
comparison of the two cases, arguing that diversities faced by the EU and California have had
comparably stimulating effects on efficiency-seeking policy. Yet both entities could learn
from each other’s regulatory experience to better address climate change and social
acceptability.
2. Why is it relevant to compare California and the EU?
Both California and the European Union are considered as places where - despite significant
economic and demographic stakes - environmental protection in general, and instream flow
restoration in particular, benefit from innovative thinking. Major elements contributing to
their reputations in this domain include the following.
As far as environmental law is concerned, analysts refer to California as a super-regulator and
a policy-pioneer7. Only one year after the US Congress had approved the first federal
environmental protection statute, the National Environmental Policy Act (NEPA) in 1969,
California supplemented it through state law. The legislature passed the California
Environmental Quality Act (CEQA) in 1970 which expands environmental review
requirements to state projects and projects requiring state agencies approval. Whereas NEPA
requirements are alleged to be mainly procedural, the significance of substantive evidence in
environmental impact reviews under CEQA, especially in water-related projects, has been
confirmed by the Supreme Court of California since then. California has also become famous
for the dramatic decision of its Supreme Court in the Mono Lake litigation, holding that the
public trust doctrine required the reduction of the long-existing water rights of Los Angeles
Department of Water and Power (National Audubon society v. Superior Court 1983). The
"Environmental Regulation and Economic Integration " Journal of International Economic Law 3, no. 2 (2000),
David Vogel, "Trading up and Governing Across: Transnational Governance and Environmental Protection,"
Journal of European Public Policy 4, no. 4 (1997).
6
Robert Gottlieb, Forcing the Spring: The Transformation of the American Environmental Movement
(Washington: Island Press, 2005), Richard Walker, The Country in the City: The Greening of the San Francisco
Bay Area (University of Washington Press, 2008), Donald Worster, ed., American Environmentalism. The
Formative Period, 1860-1915, Wiley Sourcebooks in American Social Thought (Wiley, 1973).
7
See for instance in this volume, Roland-Holst, David, and David Hanneman. "Energy Efficiency and
Economic Growth: Lessons from California." and Hioureas, Christina G., and Bruce E. Cain. "Transatlantic
Environmental Regulation-Making: Strengthening Cooperation between California and the European Union."
2
efficiency of Los Angeles's water conservation programs have been acclaimed worldwide,
and as described below, the streams of Mono Basin and the Owens Valley, which Los
Angeles largely dried up to divert their flow southward through most of the 20th century, are
being given back part of their natural flow to restore their aquatic ecosystems. First attempts
to re-allocate water through water rights trading occurred initially in California, although
observers are still doubtful whether this reallocation may support ecological restoration8.
Finally, California is one of the most active theatres of river restoration in the US, with over
4000 distinct projects identified in a recent survey9. The single most important motivation for
river restoration in California is restoration of habitat for native salmon species, whose
populations have declined dramatically in response to human impacts. From 1996-2004, the
CALFED Bay-Delta Program funded over $500 million USD in restoration projects, many for
salmon or other threatened native fish, and a comparable amount again was spent over the
same period by the US Bureau of Reclamation and the US Fish and Wildlife Service for
salmon-related restoration10.
At the time of NEPA and CEQA, the European Economic Community did not play a
significant role in environmental policy. Its competence in that domain dramatically expanded
after massive pollution of the Rhine in 1986, which killed fish for 100s of km downstream
from Switzerland to the Netherlands, even threatening the Dutch water supply. Attention
given to this event made water policy the “jewel in the crown” of the EU environmental
policy11. Through the 1990s, the European Union gradually developed a set of directives that
are heralded as highly integrated water resources policies. Some, such as the Urban Waste
Water and Bathing Water initiatives were not considered very innovative when issued,
because most of their provisions had prior US equivalent under the Clean Water Act of
197312. But the scope of their binding conditions became obvious recently when the EU Court
of Justice fined Spain €624,150 per year for every 1% of inshore Spanish bathing waters that
continue to fail to meet the quality standards set in the Bathing Water Directive. Similarly
several Member States are threatened by pendant litigations for poorly enforcing the Urban
WasteWater or the Nitrate directives. With the Water Framework Directive adopted in 2000,
the EU was heralded as the international leader in river basin management. This statute
combines institutional settings, economic tools, and biological requirements to foster
integrated water management at the river basin scale, in all Member States, with binding and
short deadlines (2015).
The State of California and the European Union have developed significant pieces of law that
are very demanding in term of ecological standards. Such elements account for the interest of
water experts toward California and the EU. Yet to fully appreciate these examples requires
in-depth understanding of the conditions that made innovative approaches possible. We
8
Juliet Christian-Smith, "The Politics and Practice of Watershed Restoration: Insights from the Russian River
Basin, Northern California " (UC Berkeley, 2006).
9
E.S. Bernhardt et al., "Synthesizing U.S. River Restoration Efforts. ," Science, no. 308 (2005), G. M. Kondolf
et al., "Two Decades of River Restoration in California: What Can We Learn?," Restoration Ecology 15, no. 3
(2007).
10
G.M. Kondolf et al., "Prioritizing River Restoration: Projecting Cumulative Benefits of Multiple Projects: An
Example from the Sacramento-San Joaquin River System in California," Environmental Management no. 42
(2008).
11
David Aubin and Frédéric Varone, "European Water Policy. A Path Towards an Integrated Resource
Management," (Louvain-la-neuve: EUWARENESS, 2002), Giorgos Kallis and Peter Nijkamp, "Evolution of Eu
Water Policy: A Critical Assessment and a Hopeful Perspective," Zeitschrift für Umweltpolitik und Umweltrecht
(ZfU), no. 3 (2000).
12
Gabrielle Bouleau, "The Wfd Dreams: Between Ecology and Economics," Water and Environment Journal
22, no. 4 (2008).
3
propose that drivers for change in favour of aquatic biodiversity in California and the EU are
similar, despite many differences in institutional, legal and political settings.
Scholars in political sciences and law usually apply different categories to describe
institutions of the State of California and those of the EU. First, from a governmental point of
view, California is one of the fifty states of the Federal Union, whereas the European Union is
a non-federal institution gathering twenty five sovereign states, some of them being
federations. Thus the comparison seems to overlook a fundamental inconsistency in
institutional hierarchy. Second, the role of both entities in the governance of water
significantly differs. The state of California has sovereign power to allocate water resources in
the public interest whereas the European Union only exerts a non-exclusive competence over
water regulation, whose scope is restricted to quality; water quantity allocation remains the
competence of member states. At first glance, California seems in a better position to rule
water uses than the EU. Third, California recognizes both riparian rights and appropriate
rights (as discussed below), whereas most European countries guarantee the right of riparian
owners to receive, without diminution, the natural flow of the stream. Thus basic provisions
of water law in California and in the European countries point to opposite directions. With so
many structural differences, it is hard to imagine that California and the EU have
commonalities that could account for their innovative practices for governing aquatic
biodiversity.
But they do. Firstly, California is comparably diverse in landscapes to Europe, with elevations
from 80 m below sea level to over 4000 above, from desert to humid temperate forests. Such
diversity of physical features induced comparable biodiversity. In Europe, aquatic
biodiversity is the highest around the Mediterranean Sea. It is also there that aquatic
biodiversity is most threatened by water diversion. Similarly most Californian population
settled in Mediterranean-climate coastal landscapes where biodiversity is high but seriously
threatened by human activity.
Secondly, both regions provide success stories of river restoration after a long period of
degradation. Pollution similarly increased in rivers during the nineteenth and the first part of
the twentieth century in the United States and the European Union, as in many industrial
countries. But dramatic events largely covered by media in the last part of the century
reversed this trend, at least its social perception. For instance, fires had erupted on Cuyahoga
River (Ohio) several times before June 22, 1969, when a river fire captured the attention of
Time magazine. This press report helped to spur the environmental movement nationwide and
to support the demand for river restoration. In the same way, in 1986, the Sandoz factory in
Switzerland caught fire, resulting in a chemical spill in the Rhine, which caused massive fish
mortality in all downstream riparian countries down to the Netherlands. Pictures of dead eels
shocked the Europeans and stimulated environmental movements. It encouraged public
policies in favour of river restoration. Interestingly, in California and in the European Union,
salmon were used as flagship species, drawing attention to successful restoration projects.
Salmon are a ‘charismatic megafauna’ by virtue of their size, their compelling life history,
their gastronomic popularity, and the popularity of salmon fishing (which attracts tourists
worldwide, while other species tend to draw attention only locally). Yet this communicating
strategy would not have succeeded without political power, provided by intellectual elites (in
both California and the EU) with few ties to industry. After World War II, western
universities educated more young people than industry could employ. While industrial
employees were reluctant to criticize pollution practices bound to their job, the highly
4
educated generation not held by such bonds supported environmental initiatives13.
Environmental movements succeeded in changing the law and providing funds to restore
rivers. Success stories of river restoration on both sides of the Atlantic probably became
popular because they took place in democratic and market-oriented countries. They were used
to argue that nothing prevented other western countries from combining economic growth and
environmental protection. Today, California’s growing population is significantly composed
of white-collar workers becoming more sensitive to environmental issues as they become
home owners. They pay more attention to factors that may raise or decrease the value of their
assets. Ironically the growing real-estate market largely contributes to the deterioration of the
environment. In this context, most inhabitants are happy to find a place to settle but they wish
they were the last new-comers.
Last, as the EU and the State of California develop rules to protect aquatic biodiversity, they
similarly face powerful reluctant actors. Beyond such success stories, aquatic biodiversity is
still threatened in both regions. Many fish species are still endangered. Legal innovations and
dramatic jurisprudence must be confronted to implementation and results. The enforcement of
courts’ decisions and state agencies’ policies mainly depend on local stakeholders who enjoy
many opportunities to open gates, pump, divert, discharge water without being effectively
controlled. Empirical observations reveal that California and the European Union have much
in common in this respect.
California and the EU have in common the challenge of dealing with powerful corps of water
engineers who are not under their authority and who traditionally promote subsidized uses of
water. In California and other western states, large irrigation schemes were built and are still
operated by the US Bureau of Reclamation, while navigation and flood control projects have
been the purview of the US Army Corps of Engineers, an agency with unusual power and
autonomy14. Similarly the EU experiences difficulties interacting with corps of water
engineers in countries like France and Spain15. As the main spokesmen of their countries for
water management, these corps of engineers are reluctant to transfer prerogatives obtained
from a long tradition of centralised water management, paralleling systems used to develop
their former colonies. There is neither such a thing as a Californian State corps of engineers
nor a European one.
In both areas, irrigation is responsible for 80% of water consumption and is supported by
public policies serving political coalitions stronger than those defending the environment. In
California, the cost of water and energy is subsidized in federal irrigation districts. In the EU,
irrigated corn production is subsidized by the Common Agricultural Policy. But at the same
time, urban claims for water supply and leisure activities are increasing in both areas, as
agriculture weighs less in the overall production and payroll.
13
Mary Douglas and Aaron Wildavsky, Risk and Culture. An Essay on the Selection of Technical and
Environmental Dangers (Berkeley: University of California Press, 1982), Henri Mendras, La Seconde
Révolution Française 1965-1984 (Gallimard, 1994).
14
Wendy Nelson Espeland, The Struggle for Water: Politics, Rationality, and Identity in the American
Southwest (Chicago: University of Chicago press, 1998), Theodore Porter, Trust in Numbers: The Pursuite of
Objectivity in Science and Public Life (Princeton: Princeton University Press, 1995).
15
Gabrielle Bouleau, "La Gestion Française Des Rivières Et Ses Indicateurs À L'épreuve De La Directive
Cadre." (Thèse de doctorat, AgroParisTech - ENGREF, 2007), Erik Swyngedouw, "Modernity and the
Production of the Spanish Waterscape, 1890-1930," in Political Ecology. An Integrative Approach to Geography
and Environment-Development Studies, ed. Karl S. Zimmerer and Thomas J. Basset (New York: Guildford,
2003).
5
Environmentalists in California and the EU are influential minorities. Both regions are
divided by internal linguistic, social and ethnic heterogeneity. It is well acknowledged by
political ecologists that social identities strongly influence how nature is perceived and what
biological species people desire to preserve. In the EU, the economic gap between wealthy
Northern countries and relatively poorer Southern countries matches both the cultural divide
between Anglo-Saxon and Latin countries, and between non-irrigated and irrigated lands.
Therefore EU’s environmental regulation is broadly understood as imposed by Northern
countries to the Southern ones. Similarly, the American environmental movement has always
been divided and weakened by opposition between middle-class wilderness lovers and
working-class environmental justice activists16. Nowhere in the US is this divide more
conspicuous than in California where great natural areas adjoin poor neighbourhoods
threatened by industrial hazards17 In both regions, cultural diversity weakens the political
legitimacy of environmental claims, because different social groups have different priorities.
Yet the federal/international scale historically happened to be strategic arenas for Californian
or European Member states’ environmentalists.
Last, neither governmental body can rely on stable constituencies to support its agenda, and
neither employs large numbers of civil servants to enforce the law. California has a tradition
of direct democracy which gives citizens the right to take legislative initiatives, for the worse
and the better. In contrast, European citizens encountered huge transaction costs to get heard
at the EU level. However no stable coalitions drive the EU legislative process due to uncertain
agendas, shifting alliances and mistrust between Member States18. To enforce the law, the EU
has no staff in Member States and most water litigations arose from NGOs. In California, the
staff in charge of water rights deals mainly with issuing permits (with long delay) and has
essentially no time to field-check the reality of uses19. For both entities, public support is
critical. They must continuously justify their decisions and the relevance of existing rules as
unpredictable challenges arise.
Hence the State of California and the EU experience very similar hurdles when they come to
try to restore aquatic biodiversity of their rivers. Neither California nor the European Union
has its own corps of engineers to forge a unitary environmental management of rivers. Both
governmental bodies experience strong internal opposition of irrigators in their attempt to
secure more water for aquatic species. Neither can rely on social cohesion to promote
environmental values, because social diversity leads to a diversity of environmental
expectations. For all these reasons, the power of enforcement and persuasion of the EU and
the State of California is similarly fragile. Climatic and social diversity undermines their
legitimacy. Strong economic and political institutions do not need innovative legal
instruments. Weak institutions looking for public support may be more creative in this
domain. California and the EU have largely counted on law to put constraints on water rights,
in the name of efficiency and to restore aquatic biodiversity.
16
Gottlieb, Forcing the Spring: The Transformation of the American Environmental Movement.
Martha Matsuoka, "Building Healthy Communities from the Ground Up: Environmental Justice in California,"
(Asian Pacific Environmental Network, Communities for a Better Environment, Environmental Health
Coalition, People Organizing to Demand Environmental & Economic Rights, Silicon Valley Toxics
Coalition/Health and Environmental Justice Project., 2003).
18
David Earnshaw and David Judge, "No Simple Dichotomies: Lobbyists and the European Parliament,"
Journal of Legislative Studies 8, no. 4 (2005), Jeremy Richardson, "Eu Water Policy: Uncertain Agendas,
Shifting Networks and Complex Coalitions," Environmental Politics 3, no. 4 (1994).
19
Reed D. Benson, "So Much Conflict, yet So Much in Common: Considering the Similarities between Western
Water Law and the Endangered Species Act," Natural Resources Journal 44, no. 29 (2004).
17
6
3. Evolution of water regulation in California
Many of the western states of the US rejected the riparian doctrine of water law still
prevailing in the Atlantic and Midwestern states. California is the exception in that it adopted
the “common law of England” when it entered the Union in 1850 and conformed to the
American reasonable rule of the riparian doctrine, but it also adopted the prior appropriation
system during the 19th century gold rush, and is now governed by both20.
In addition, the concept of pueblo rights for cities such as Los Angeles over the nearby rivers
was inherited from Spanish colonization21. Thus, unlike a state such as Colorado, where the
appropriative rights doctrine always reigned supreme, in California there has always been a
competition among different rights and claims. This situation only grew more complicated
with the advent of large water transfer projects in the mid-20th century, passage of
environmental protection laws, and application of the public trust doctrine to protect
environmental values in the late 20th century, and recent efforts to create legal frameworks to
transfer water rights from beneficial uses to instream flows for the environment. These
diverse doctrines gave rise to piecemeal litigations, and led to more challenges to existing
water rights than occurred in other Western states. The state government lacked the
legitimacy to favour one water use at the expense of another, but instead sought support from
coalitions of powerful actors through shared values such as efficiency. Efficiency nowadays is
assessed in reference to a large set of beneficial uses including economic sectorial uses
(aquaculture, power generation, irrigation, mining, …), community water needs (fire
protection, recreation, municipal uses, …), and environmental requirements (fish and wildlife,
maintaining water quality).
Since its establishment in 1914, the State Water Board has had the authority to restrict water
appropriation through permit process (1) to limit harm suffered by other water rights holders
(such as subsidence or water table lowering), (2) to secure the public trust (following the case
Audubon National Audubon Society v. Superior court, 1983) and (3) to restore environmental
in-stream flows. However, the Board has lacked the political will to exercise its authority22.
Existing water rights often exceed what would be a sustainable use with regards to the
preservation of aquatic biodiversity. The “use it or lose it” rule is enough to motivate most
farmers to put their water rights in use. Moreover, groundwater is unregulated in the state.
Rather than treated as a public good connected to rivers through the hydrologic system,
groundwater is treated as a private property right that accompanies the land under which it
lies, based on a convenient fiction that surface and groundwaters are not connected.
Exceptions are certain river basins in which uses have been so intense that the state has
recognized that the alluvial aquifers are connected to surface waters, and all uses are
adjudicated.
Much of the agricultural water used is grow crops with relatively low economic yield per unit
water applied. The inconsistency between this situation and the need for waters in the rivers to
maintain the aquatic ecosystem and needs for water to support high-value urban uses has
20
Joseph L. Sax et al., Legal Control of Water Resources. Cases and Materials. Fourth Edition, American
Casebook Series (St Paul, MN: Thomson West, 2006), 328.
21
W. Kahrl, Water and Power: The Conflict over Los Angeles’ Water Supply in the Owens Valley (Berkeley:
University of California Press, 1982).
22
Hanemann, M. and C. Dyckman "The San Francisco Bay-Delta: A Failure of Decision-Making Capacity."
Environmental Science and Policy. (forthcoming).
7
motivated the transfer agricultural water rights to instream flow and urban use. The problem
has been to find a mechanism with which to do this, given the legal framework of
appropriative rights and the ‘use it or lose it’ rule. After five years of drought, in 1991, the
California Department of Water Resources (DWR) established a Drought Water Bank, which
purchased water from farmers willing to sell it, and resold the water to other users. The price
offered was better than returns from farming many crops, so a number of farmers sold their
surface water to the Drought Bank. Some fallowed their land, but others took the money for
their surface water, pumped groundwater, and continued farming. Another recent innovation
is the Water Code section 1707, which permits the transfer or dedication of all or part of
existing water right specifically for environmental purposes, so farmers can forego some
diversions while maintaining their water rights23. However this provision does not prevent
riparian rights holders and downstream appropriators with a senior water right to divert the
“dedicated” water.
Passage of the federal Clean Water Act (CWA) and the Endangered Species Act (ESA)
confounded the complexities of water law in California. While the state of California never
had the political legitimacy to impose strong command-and-control legislation, the federal
government did. Californian social and environmental activists were largely behind
recognition of these issues and building political coalitions supporting passage of the federal
legislation24. Under CWA, federal agencies set water quality standards supporting
‘designated’ uses in all US waters, such as fishing, swimming, and, if attainable, biological
integrity. Defining water quality standards is the duty of state agencies, but the federal
Environmental Protection Agency may promulgate substitutes. In any case, existing uses must
be maintained. Environmental agencies may define less stringent objectives to avoid high
social and economic costs. CWA conflicts with existing water rights but says little about
possible solutions. In addition to its command-and-control functions, federal funds authorized
under CWA (with a mandatory 20% state match) support projects to improve water quality
under the Water Pollution Control Revolving Fund.
The federal Endangered Species Act (ESA) of 1973 protects endangered species and the
ecosystems on which they depend. ESA prohibits federal agencies from actions that may
cause jeopardy to a listed species and prohibits “take” of any member of a protected species
of fish or wildlife, meaning to harm or to degrade its habitat. Neither CWA nor ESA restrict
water uses directly and permanently, but represent on-going threats. For example, when the
US Fish and Wildlife Service determined that winter-run Chinook salmon and the Delta smelt
were affected by large diversions by the Central Valley Project and the State Water Project, a
US District Judge imposed short-term curtailments on water deliveries from both projects.
The US Bureau of Reclamation and Fish and Wildlife Service frequently clash over issues in
California. The leeway for action between these federal agencies consists of revising permits,
expanding the scope of consultation for projects and defining procedures of hearings and
negotiation.
The California Environmental Quality Act (CEQA) of 1970 expanded the scope of federal
laws by giving biologists opportunities to challenge plans that otherwise may proceed
unnoticed. Thusly, the State of California multiplies opportunities to revise water allocation.
23
Hanemann, M. and C. Dyckman (ibid.).
Douglas and Wildavsky, Risk and Culture. An Essay on the Selection of Technical and Environmental
Dangers, Espeland, The Struggle for Water: Politics, Rationality, and Identity in the American Southwest,
Gottlieb, Forcing the Spring: The Transformation of the American Environmental Movement.
24
8
Another innovation was the CALFED Bay-Delta program, which was launched by federal and
state agencies to resolve persistent conflicts over water and environment in the SacramentoSan Joaquin Delta (including curtailment of diversions due to impacts on endangered species).
CALFED sought to increase reliability of water supply through increased storage and also
through an ecosystem restoration program, which undertook physical actions in river and tidal
channels with the aim of increasing populations of key fish species so that their survival
would no longer be threatened by losses at the large diversions, and thus eliminating the threat
of curtailments of pumping. Unfortunately, the CALFED program lost political support in
2005, was unable to reach an agreement on funding commitments25, and suffered from
fundamental weaknesses in institutional structure26. While still extant, the program is much
diminished from its former role, and the efforts to develop solutions to the problems of the
Sacramento Delta are now concentrated in the Delta Vision program, led by a Task Force
appointed by the governor27.
There is no clear-cut doctrine firmly establishing water rights in California, as courts have
redefined ‘efficiency’, and conflicts among strong economic interests have motivated
technological innovations in areas of sharp water conflicts. A relative lack of stream flow and
groundwater data weakens enforcement. The beneficial and reasonable use of appropriated
waters has clashed with the protection of endangered species under ESA28. Enforcement is
difficult, but California opened doors to civil actions under CEQA.
A high-profile case study illustrates the evolution of public policy towards water diversions
and environmental protection. The waters of the Owens River and Mono Basin in eastern
California have been diverted via aqueduct to City of Los Angeles since the first half of the
20th century, effectively drying up some formerly productive streams and causing the level of
Mono Lake (a terminal lake) to fall 7m from 1940-198029. The California Fish and Game
Code requires that operators of dam and diversions release sufficient water to maintain fish in
good condition downstream. However, in the era of the 1940s, there was little public or
institutional support to maintain fish at the expense of public water supply, and the City was
allowed to dry up Rush Creek. But by the 1980s, went water was released down Rush Creek
during wet years, trout re-established themselves in the creek, and environmental NGOs
successfully sued to prevent the City from shutting off the flow and killing the fish. Similarly,
to save the ecological resources of Mono Lake from excessive water level decline and
consequent increased salinity, NGOs successfully sued, leading to the landmark ruling in
Audubon case (National Audubon Society vs Superior Court, 1983), which affirmed the
applicability of the public trust doctrine to protection of ecological values of waters. The
change from the 1940s to the 1980s largely reflects changes in public values, with the rise of
25
Richard Howitt, "Delta Dilemmas: Reconciling Water-Supply Reliability and Environmental Goals," Giannini
Foundation of agricultural economics. Agricultural and Resource Economics Update 10, no. 4 (2007), Jay Lund
et al., Envisioning Futures for the Sacramento-San Joaquin Delta (San Francisco: Public Policy Institute of
California, 2007).
26
Little Hoover Commission, "Still Imperiled, Still Important: The Little Hoover Commission’s Review of the
Calfed Bay-Delta Program. Report No.183," (Sacramento, CA. : Little Hoover Commission, 2005).
27
P Isenberg et al., "Our Vision for the California Delta. Report of the Delta Vision Blue Ribbon Task Force,"
(Sacramento, California, 2008), P. Isenberg et al., "Delta Vision Strategic Plan. Report of the Delta Vision Blue
Ribbon Task Force," (Sacramento, California: 2008).
28
Benson, "So Much Conflict, yet So Much in Common: Considering the Similarities between Western Water
Law and the Endangered Species Act."
29
Kahrl, Water and Power: The Conflict over Los Angeles’ Water Supply in the Owens Valley, National
Research Council, "The Mono Basin Ecosystem: Effects of Changing Lake Level," (Washington: National
Academy Press, 1987).
9
environmental concerns motivating application of laws and legal doctrines that existed before,
but which had not been enforced or applied. California water laws include ample provisions to
restrict existing water rights in order to meet new ecological objectives, but enforcement
mainly relies on public participation and NGO lawsuits.
4. Evolution of water regulation in Europe
European law challenges European nation-state sovereignty that member states have enjoyed
since the Peace of Westphalia30. What happened in France for river management is a good
example of this shift. Unlike California, France has a long tradition of centralization, and
allocating water was a source of power for the state, and a reflection of its priorities.
Efficiency was not considered. During the Middle Age, water rights were part of the “moral
economy”. In practice, a “first in place, first in rule” doctrine prevailed. As different political
powers claimed sovereignty on water, the conflicting influences provided leeway for villages
to use water in mills, canals and ditches31. Community water rights were entrenched into
water management structures through written titles, with builders of infrastructure or their
heirs as beneficiaries.
With development of colonial empires, market competition and the Reform, European
sovereigns started to consider the efficient use of natural resources32. King Henri IV claimed
that common wetlands abandoned by abbeys during religious wars were vacant, inefficient,
and needed development. He appropriated such “vacant” swamps and leased them to Flemish
merchants for reclamation projects. Communities lost their properties and water rights. Royal
strategy more than comparative effectiveness ruled water allocation. As the Revolution
replaced the King’s discretion by the ideology of “public utility”, navigable waterways
previously appropriated by kings for trade and water-logging became state’s property,
possibly allocated to private parties through leasing. Napoleon’s civil code of 1802
established a riparian doctrine for non-public water-courses in Article 644. But due to the
claims of irrigating farmers in the south of France, Article 645 acknowledged former rights to
divert water as local custom rights that should be taken into account33. Such water rights
“based on titles” were acknowledged to the owners of water structures built during monarchy.
France did not adopt an equivalent to the American “beneficial use” doctrine to restrict
inefficient water rights, but promoted the “public utility”, which restricts private property in
the name of the general interest. Landowners reluctant to invest in reclamation projects
deemed to produce higher yields could be expropriated. Since the 19th century, the state has
set itself as a master to define “public utility”, advised by a corps of engineers with a
monopoly on public expertise34. As industrialization progressed, several Corps of engineers
came into being to rule different sectors. Unchallenged by civil society, strongly subjected to
internal peer-review processes, each Corps developed its one-best-way to manage water.
30
Hioureas, Christina G., and Bruce E. Cain. "Transatlantic Environmental Regulation-Making: Strengthening
Cooperation between California and the European Union." In this volume.
31
Dante Caponera, Principles of Water Law and Administration: National and International (Rotterdam: A.A.
Balkema, 1992), Jean-Louis Gazzaniga and Xavier Larrouy-Castera, "Le Droit De L'eau Et Les Droits D'eau
Dans Une Perspective Historique," in Histoires D'une Eau Partagée, ed. O. Aubriot and G. Jolly (Provence
Alpes Pyrénées. Université de Provence, 2002).
32
Jean-Paul Haghe, "Les Eaux Courantes Et L'etat En France (1789 - 1919). Du Contrôle Institutionnel À La
Fétichisation Marchande" (Thèse de doctorat, EHESS, 1998).
33
Alice Ingold, "Les Sociétés D'irrigation : Bien Commun Et Action Collective," Entreprises et histoire, no. 50
(2008).
34
Laurent Cohen Tanugi, Le Droit Sans L'etat (Paris: Quadrige/ Presses Universitaires de France, 1985), Porter,
Trust in Numbers: The Pursuite of Objectivity in Science and Public Life, 121.
10
The management of aquatic biodiversity had long focused on trout, and depending on
restocking. Chronic pollution was tolerated by the administration, reflecting a prevailing view
that society’s needs required that some rivers to be used as sewers35. Losses were
compensated for by restocking. Pollution and habitat degradation continued into the 1970s,
and by the time water quality improved, irretrievable biodiversity losses had already occurred.
The fish protection act (loi pêche 1984) improved instream flows except in the ‘international’
Rhône and the Rhine rivers.
With the advent of the European Union, a first wave of European law in water quality
(between 1972 and 1986) aimed at protecting consumers’ health through negative and
reactive regulation36 limiting activities recognised as harmful and introducing reporting
requirements that allowed public scrutiny. Following the 1986 Sandoz chemical spill on the
Rhine, there was broad public support to improve the ecological quality of European waters,
including an impetus for positive environmental regulations setting water quality standards37:
the Urban Waste Water directive, the Nitrate Directive, and the Integrated Pollution
Prevention and Control Directive38.
The Water Framework Directive (WFD, 2000/60/EC) requires water bodies to achieve ‘Good
Ecological Status’ and ‘Good Chemical Status’. ‘Good status’ means compliance with
relevant EU water quality standards, and only minor deviation from the natural status of a
comparable water body. The WFD addresses the ecological quality of waters for the first
time39, promoting systematic planning with uniform, scientific, European-wide river
monitoring to distinguish ecological changes from factors such as climate change from human
impacts. This landmark legislation considerably limits States’ discretion on water
management, with noticeable effects on Member States’ policies. In France, the directive put
water quality standard on the political agenda at national level and forced the state to publish
more data on the water quality, including maps showing the status of individual parameters.
The designation of quality objectives, which was previously under the discretion of the
administration, became a political claim. Anticipating unpredictable restrictions in their
diversion permits, as more stringent instream flow would be required, power producers joined
the water agency tax system to negotiate compensating payments in 2000. Multiple economic
studies have been ordered by the state or the basin agencies to value environmental assets and
to assess benefits and employment induced by water usages. The state is drafting a method to
assess the volume of water available per basin each year to review permits accordingly.
Be it governed by kings or elected officials, the French state has long exercised substantial
discretion in water allocation. Dramatic changes in land and water uses were mostly initiated
or managed by rulers. State politics was never challenged by water problems. Therefore water
rights in force do not reflect a shared vision of an optimum allocation, but rather some kind of
national heritage with which social actors must cope. Were outsiders to assess effectiveness
and efficiency of existing water rights and water management, they would lack information.
They would also lack political support, since the state overcame domestic contradictions by
Romain Garcier, "Rivers We Can’t Bring Ourselves to Clean – Historical Insights into the Pollution of the
Moselle River (France), 1850–2000," Hydrol. Earth Syst. Sci. Discuss., no. 4 (2007).
36
William Howarth, "The Progression Towards Ecological Quality Standards " Journal of Environmental Law
18, no. 1 (2006).
37
Ibid.
38
Aubin and Varone, "European Water Policy. A Path Towards an Integrated Resource Management."
39
Howarth, "The Progression Towards Ecological Quality Standards ".
35
11
implementing costly mitigation policies. Until imposition of the WFD from the European
level, river water quality objectives were never designated.
5. Fostering comparison between EU and California water laws in regards to future
challenges
Aquatic biodiversity in freshwater is primarily threatened by water diversions and their
consequences, most of them legally performed. As snow packs shrink and evaporation
increases due to climate change, pressures increase on water resources at the river basin level.
Instream flows will be required to secure life cycles of aquatic species. This cannot be
achieved by other means than curtailing existing water rights for environmental purposes. In
this context, clear-cut legal doctrines assuring water allocation defined once and for all are not
the best adapted to the situation. On the contrary, juridical systems with overlapping
principles requiring interpretations and negotiations are more likely to achieve the needed reallocation. In this respect, the European Union and the US state of California have much to
teach.
Similarly confronted to powerful stakeholders exercising substantial discretion on water
allocation, California and the European Union developed parallel strategies to counter their
power. Just as the environmental European law benefited from competition and mistrust
between member states, the environmental review required under CEQA offered opportunities
for renegotiating water allocation between in California, notably among federal agencies.
Despite their institutional differences in level of governance, California and the European
Union have much to learn from each other in the area of aquatic biodiversity. To date this
institutional gap between California and the EU has limited previous trans-Atlantic exchange
to federal agencies (EEA and EPA) with little commitment of the Californian state. As a
consequence, such projects have mainly focused on ecoinformatics and have failed to address
water rights as a driving force for aquatic biodiversity40.
As a conclusion, this section examines what California and the EU have developed in
common and what they could learn from each other. First we explain the relevance of their
common reference to undisturbed conditions in the face of climate change. This leads us to
outline the limitations of the public participation under the European regulation and the lack
of provisions to address the specificity of Mediterranean conditions. Then we address the
weaknesses of US and California’s law which could benefit from the EU experience in
providing comprehensive economic and ecological data.
Although the EU celebrates traditional agriculture as a main component of its landscape and
biodiversity, it is striking that the water framework directive distinguishes between highly
modified water bodies and water bodies which shall achieve a good ecological status defined
as minor deviations to undisturbed conditions. The relevance of such a notion has been
questioned by European scholars as ecological science increasingly recognizes instability of
40
See for instance, the Agreement for Scientific and Technological Cooperation between the European
Community and the Government of the United States of America of 1998 and the Implementing Arrangement
between the European Commission and the United States Environmental Protection Agency to Promote
Cooperation on Environmental Research and Ecoinformatics of 2007.
12
ecosystems41. But Europeans should look at the American experience in this domain. As
proved in the US, the reference to pristine conditions acts as a radical critique that may be
useful to fulfil new societal preferences. In 1978, the U.S. Supreme Court declared that the
ESA requires that species losses must be stopped “whatever the cost” (TVA v. Hill, 437 U.S.
187). This extreme standpoint proved to be effective in opening public debates in order to
reconsider public expectations in regards to ecological objectives. In the face of climate
change, the natural variability of ecosystems is going to change. It is crucial then that the
public participates to the definition of new ecological objectives. This requires widening the
scope of possible futures while economic interests would rather maintain the status quo. ESA
and WFD converge in this respect as they require that radical options such as pristine
conditions be considered.
Public debates also require envisioning situations that resonate in the public mind. In this
respect, the EU has much to learn from the vitality of public debates in California. The EU
provisions are highly technocratic, using complex language and expert criteria. Biological
metrics used to define the good ecological status are highly esoteric for lay people. The WFD
is largely unknown by the public. The EU spends a tremendous budget to foster public
participation in the implementation of the WFD. The EU could learn from the experience of
Californian NGOs in public participation in watershed restoration the significance of
charismatic species in building public support for environmental protection. Flagship species
and past experiences of recreational uses like bathing, fishing or canoeing resonate much
more in the public mind than complex biological metrics. The WFD contains provisions to
revise ecological assemblages. Experts are asked to determine deviations appearing in
biological samples that can be related purely to variations in climate and geology. CrossEuropean monitoring may help to diagnose such deviations. Experts may be able to change
ecological references without major civil oppositions given the existing complexity of the
good ecological definition. However, as EU law progresses, suspicion over the lack of
democratic control increases. The technocratic provisions of the WFD weaken the social
support for its implementation.
The WFD requires national protocols to assess ecological quality to be inter-calibrated among
Member States. This provision aims to limit discrepancies between States and to set a
common measurement of biodiversity comparably fine-grained in the North and South. Yet,
biodiversity is not equally distributed among European regions. Mediterranean regions are
endowed by much more endogenic species than Northern countries. It is not clear whether
such species will be correctly represented in Europe-wide calibrated indicators. More tailored
approaches to biodiversity like Natura 2000 and Californian experiences may complement the
WFD limitations in this respect.
California laws and European directives empowered civil society as a means to counter
influential developers. By requiring consultation for all projects subjected to state agency’s
approval, CEQA gave opponents more opportunities to voice their claims. Through
mandatory reporting, the EU provided citizens with much more information than their
domestic states were used to provide, reducing states’ discretion. In both contexts, challenging
existing water rights or ineffective water allocation means costly litigations not everybody can
afford. However in the European Union, information provided through reporting has a
cumulative effect that CEQA does not. It forces member states to operate monitoring systems
41
Howarth, "The Progression Towards Ecological Quality Standards ", Patrick Steyaert and Guillaume Ollivier,
"The European Water Framework Directive: How Ecological Assumptions Frame Technical and Social
Change," Ecology and Society 12, no. 1 (2007).
13
on a regular basis, providing science and expertise with long-term free available data.
California could learn from this as it experiences a dearth of monitoring stations and longterm data bases.
Last, but not least the European directive economic requirements will produce a whole set of
economic studies in European countries concerning water uses. From this set, scientists and
experts worldwide may draw average figures and extrapolate them as proxy to initiate
economic assessments in areas where economic performances of water uses remain hardly
known. The WFD requires that Member States disclose financial transfers related to water
uses in order to assess the cost-recovery of services. It may hamper the further development
of highly subsidized projects and simultaneously encourage water-saving technologies. This
should not leave the Californian green sector indifferent.
The histories of water regulation in California and the EU have much to teach to the US and
the rest of the world. While states typically protect property rights, California and the EU are
unusual in that their laws submit water rights to the tests of reasonable and beneficial use
(California) and to cost-effectiveness (EU). This limitation is not bounded, so one can never
be sure that his use will always be reasonable or cost-effective: it will depend on evolving
societal values and the context of water use more broadly, including how efficiently others are
using water and for what. This “illimited limitation” may provide the flexibility we need to
face changing water availability and the lack of certainty of supply that will inevitably come
with profound changes in climate.
14