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?