Wed, 02/17/2021
This post is a summary of Episode 7 of The Nebraska Governance & Technology Center’s Podcast Series, Tech Refactored. Hosts Gus Hurwitz, Menard Director of the Nebraska Governance and Technology Center and Peter G. McCornick, Executive Director of the Daugherty Water for Food Global Institute at the University of Nebraska were joined by:
Rob Cifelli, Hydrometeorology Modeling and Applications Team Lead at the NOAA Physical Sciences Laboratory
Francisco Muñoz-Arriola, Associate Professor in Hydroinformatics and Integrated Hydroclimate in the Department of Biological Systems Engineering and the School of Natural Resources at the University of Nebraska-Lincoln
Anthony Schutz, Associate Dean for Faculty and Associate Professor of Law at the University of Nebraska College of Law.
As major catastrophic weather events become evermore common as a result of global climate change, regulations surrounding our shared water resources have been slow to adapt. Fights over who should bear the costs of catastrophic flooding of the Upper Midwest in 2019, or high-stakes decisions about how, when, and for what purposes California should use the water stored in its reservoirs are only a couple of examples of the kind of crucial issues facing states and the federal government. In the seventh episode of Tech Refactored, our panelists grappled with what are the goals in creating a more systems-based, adaptive approach to waterlaw, and what are the factors standing in the way?
Key to understanding why changes in the way water is used in the United States have historically been difficult to achieve is the concept of “prior appropriation,” explained Shutz. Prior appropriation is a “first in time, first in right” approach which provides that a user that is first to obtain the legal right to use a water resource has a right to use that resource ahead of any users that come after it. Shutz notes that this system has historically had the advantage of providing security for an initial user (say, a farmer) that allows that user to make substantial investments (build an irrigation system), secure in the knowledge that anyone that later seeks to use that water source will only have a secondary preference, essentially waiting in line behind that initial user. The downside of prior appropriation is that it doesn’t provide for the possibility that those vested interests with water access might, over time, not be the most efficient potential users of water resources and might obstruct the kinds of changes that might be necessary to provide for a more equitable, sustainable use of water.
Essentially regulators are faced with two conflicting realities: a) there are innumerable stakeholders who depend on a level of predictability in their access to water, and frequently have strong vested interests in ensuring that their current access to water is maintained, and b) the current status quo in the ways that we manage our water is untenable, in that existing water resources are being depleted at an unsustainable rate, and the increase in hydrological (water related) extreme events is damaging global economies on the order of billions of dollars a year.
Few places have been more profoundly affected by the “prior-appropriation” approach than California, especially in the case of the state's Central Valley Aquifer. According to Marcus, “(it took) a hundred years for the State of California to get to (addressing groundwater management) because it was politically such a hot potato. But those groundwater basins that we’ve been overdrafting are the only thing big enough in size to compensate for the loss of snowpack” as a result of climate change that is imperling California’s water supply.
The water-management situation in California is particularly critical because the state has been in a drought that is now stretching over a decade. This has famously led to unprecedented forest fires, as well as stressing the systems in place to provide water to cities and California’s enormously-important agricultural sector. Marcus discussed how California was already engaged in a serious drought-mitigation effort before the most recent decade-long drought struck the state, combining conservation, integrated water management, and recycling in urban environments. “We had come in and developed a whole climate water action plan to deal with the inevitable exacerbation of all of (these challenges) that climate change was going to bring. We didn’t realize it was going to hit us just as we were getting started.”
Further complicating water management issues, especially in the case of reservoirs, is that often there are not just two competing stakeholders that have divergent interests, but several. Cifelli used Lake Mendocino to illustrate the point. There you have the Army Corps of Engineers using the lake for flood control, recreationalists who want enough water in the outfeed river in order to kayak, Sonoma County that has responsibility for providing water to 60,000+ consumers, and the National Oceanic and Atmospheric Administration’s Fisheries Division, which works to ensure that there is enough water in the river for fish to spawn at the appropriate time of year.
For Marcus, the starting place for engineering a more unified approach to water management issues (rather than having multiple overlapping governmental entities with conflicting priorities all fighting for management authority over a given water resource) is simply a shared information structure and better dataset from which to operate. Simple steps, like requiring water users to measure and report what they took out of streams rather than “putting their thumb to the wind or guessing on paper,” are sometimes not even in place. Standardizing methodologies and centralizing data would at least provide a starting place for a discussion among stakeholders who otherwise might be operating from vastly-different sets of assumptions.
The challenge of conflicting stakeholders with different priorities is, of course, not unique to water-management. What then, asked Hurwitz, sets water-management apart from other areas at the confluence of law and technology? For Muñoz-Arriola, a major difference is the geographically-localized nature of water disputes; whether in terms of an individual watershed or an aquifer, water disputes are often localized in a way that other capital-intensive issues are not.
So what is the prognosis on the likelihood that we will be able to take a more comprehensive systems-based approach to the ever-more acute water crisis?
According to Marcus:
I think people want to be connected. I think sometimes agencies fear it. So I think we need a spirit of being able to see how we can all get better together.
And Schutz:
The good thing about (water-management) is that there are solutions, right? There are things that we can do, and there's always a way forward. So we find ourselves muddling along with some of the mistakes that we've made, but we've got the flexibility, we've got the skills, and we've probably got the money to do very difficult things.
And I think it is actually going to take that as this climate starts to do really wacky things.
Tags: Tech Refactored Review
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