Plans are What Happen When You’re Busy Making Other Plans: Supplements to the Water Planning Process

In the last two months, elected officials in at least three states – Arizona, Texas, and California – have released water policy documents that either resemble or purport to serve the same general purpose as state water plans.

What a plan is – or is not – is not always self-evident.  Gloria Steinem has called dreaming a form of planning, and in a quote often misattributed to John Lennon, cartoonist Allen Saunders once described life as what happens while you’re making other plans.  More prosaically, Merriam-Webster defines a plan as “a set of actions that have been thought of as a way to do or achieve something.”

In water policy, a plan is generally a forward-looking document (that spans some specified time horizon) and that is produced according to a particular public process and juggles long-term projections of water supply and demand.

Virtually all Western states produce state-level water plans, to varying degrees of fanfare.  The Association of California Water Agencies has published a document called the Statewide Water Action Plan for California and, though technically a plan with a statewide perspective about water, it is not a “state water plan” because the California government did not develop and adopt it through the formal planning process.

Nor are the Arizona, Texas, and California documents “state water plans.”  They are plans within the Steinem sense, or the Saunders sense, of the Merriam-Webster sense, but not within the strict sense of water planning law and policy.

And whether you call them quasi-plans, or pseudo-plans, or non-plans, these documents help to illuminate the boundaries of formal water planning and clarify the purpose, tone, and substance of official state water plans.  Each of the documents — a “strategic vision” in Arizona, a “special report” in Texas, and a “water action plan” in California – is worth a quick examination within the context of water planning in its respective state.

Arizona’s “Strategic Vision”

Arizona is one of the few Western states that does not produce a state water plan.  Since as far back as the mid-1970s, the Arizona Department of Water Resources (ADWR) or its predecessor has produced a compendium of water supplies and demands.  This compendium has gone by different names – currently, it is known as the Arizona Water Atlas; before that, it was the Arizona Water Resources Assessment; and in the late 1970s, it was even called the State Water Plan, though its purpose has always been informational rather than strategic.

At least on a surface level, Arizona law still contemplates a “state water plan.”  A.R.S. § 45-105(B)(4)(a) authorizes the ADWR director to coordinate with the “Arizona power authority, game and fish commission, state land department, Arizona outdoor recreation coordinating commission, Arizona commerce authority, radiation regulatory agency, active management area water authorities or districts and political subdivisions of this state with respect to matters within their jurisdiction relating to surface water and groundwater and the development of state water plans.”

The same statute, at subsections 45-105(B)(4)(b) and 45-105(B)(4)(c) authorizes the director to work with the department of environmental quality on “state water plans” pursuant to title 49, chapter 2 of the A.R.S., which governs water quality.  That chapter discusses TMDL implementation plans, stormwater prevention plans, community involvement plans, and remedial action plans, but nothing called a “state water plan” and certainly nothing in the mold of the state water plans prepared in Texas and California.

Likewise, A.R.S. § 45-1941 instructs county water augmentation authorities to “cooperate, coordinate and confer with the director of water resources, state agencies, special districts, authorities and other political subdivisions of this state and the United States with respect to matters within their jurisdiction relating to augmenting the water supplies of the county in which the authority is established and developing state water plans.”

That is not to suggest there is no water planning in Arizona.  A.R.S. § 45-342(A).  requires “community water systems” to conduct water planning on a five-year basis.      The state defines a “community water system” as a “a public water system that serves at least fifteen service connections used by year-round residents of the area served by the system or that regularly serves at least twenty-five year-round residents of the area served by the system.”  A.R.S. § 45-341.  The system water plans serve, at a smaller scale, the same purpose as state water plans.  They must include “water supply plans” that “evaluate the water supply needs in the service area and propose a strategy to meet identified needs.”  A.R.S. § 45-342(H).

In some ways, Arizona has been inching toward more formal state-level planning – in 2006, for instance, the ADWR created a “statewide water advisory group” to take part in “strategic water planning” – and the “vision” (full title: “Arizona’s Next Century: A Strategic Vision for Water supply Sustainability”) could mark another move in that direction.

The “vision” divides the state into “planning areas” and recognizes that “[t]he next logical step is to identify possible strategies to address the imbalances, not just walk away and leave it to individuals, industries and local communities to meet their future water needs in a vacuum … As currently structured, it is largely left to individual entities and communities, to try to obtain the supplies and finance the necessary infrastructure to put these to use.”

The “vision” is not, however, a formal and statutorily sanctioned plan.  It was written at the request of the governor.  It did not spring from a prescribed planning process and is not required to be updated at regular intervals.  By its own terms, the “vision” is “not intended to be a regulatory tool.”  In other words, it could carry persuasive authority, but it does not carry legal authority.

The “vision,” moreover, is an openly political document.  It begins with a message from Governor Jan Brewer, who refers to water as the cement needed to hold together her “Four Cornerstones of Reform.”  She triumphantly bills the “vision” as a “solid foundation for Arizona’s economic growth in the next century, just as our great leaders did before us.”  One page later, in a forward, ADWR Director Sandy Fabritz-Whitney lauds the governor for her “foresight and leadership.”

An acknowledgements page credits staff from ADWR and recognizes that the “vision” received “significant contributions” from the governor’s natural resources policy advisor and representatives from: the Arizona State Forestry Division; the Salt River Project; the Arizona Cotton Growers; and the Southern Arizona Water Users Association.

Stakeholder input is an important piece of any public planning process, of course, but the “vision” acknowledgments suggest that utilities and trade groups directly wrote significant portions of the final document.

Texas’ “Special Report”

Texas, as we have blogged before, started water planning at the state level in the 1950s.  In 1997, to reduce conflict and competition among regions, the state shifted to a new bottom-up form of water planning in which sixteen regional planning groups submit regional water plans to the Texas Water Development Board (TWDB), which then reviews and consolidates the plans into a single State Water Plan.

The state thus has a highly formal and structured planning process, which culminates in the adoption every five years of a new “state water plan.”  In last year’s Ward Timber decision, the state’s Eleventh Court of Appeals compared the state water plan to a business plan and observed that governmental permitting decisions are tied to the planning process.

Additionally, state financing assistance for water projects tiers off of the planning process, under the new H.B. 4/Proposition 6 infrastructure financing scheme.  (As we have blogged before, this tethering of financing to planning could strengthen the importance of the planning process and centralize the most important planning decisions.)

Into this planning context has waded the state’s Comptroller of Public Accounts, Susan Combs.  The comptroller’s office is an elective, constitutionally created position with jurisdiction over … things other than water.

The website for current comptroller Susan Combs describes the comptroller as “the chief steward of the state’s finances, acting as tax collector, chief accountant, chief revenue estimator and chief treasurer for all of state government.”  The office is not completely removed from environmental policy: one of its units, the State Energy Conservation Office, promotes energy and water efficiency in government-owned property; and another of its units, Texas Treasury Safekeeping Trust Company, will hold and invest the funds for the water infrastructure bank mentioned above.

Still, the comptroller’s office is not directly or indirectly involved in water planning, water rights, water quality, water financing or other water-related matters.  Such responsibilities fall to the TWDB and Texas Commission on Environmental Quality.  Nevertheless, as comptroller, Combs has presented herself as being responsible not just for the state’s ledger but for its economic development.

Under her leadership, the comptroller’s office has published reports on subjects as varied as health care (including at least two on health care reform and another two on obesity), the physician education loan repayment program, and the Texas film industry.  She has also shown an interest in natural resources, putting out three reports on endangered species and three on water.

The most recent water report – “Going Deeper for the Solution” – was released in January 2014.  In an introduction, Combs observes that the report is meant to “revisit the issue of drought,” “examine the multiple sources of Texas’ water,” and “discuss promising new technologies and programs.”  But most importantly, Combs says, the report “makes a series of policy recommendations for our Legislature that could help provide water supplies ample enough to ensure that Texas can continue its remarkable growth and prosperity.”

The express purpose of the report, then, is for the comptroller – who, again, has no jurisdiction over water – to make  “policy recommendations” that are separate from those included in the official state water plan.  At the most general level, the report presents three recommendations: (1) establishing a grant program for conservation and efficiency; (2) increasing state funding for demonstration projects; and (3) establishing prize awards for innovative technologies.

California’s Water Action Plan

California began producing reports on the state’s water resources in the early twentieth century but did not release its first modern, comprehensive California Water Plan (CWP)  until 1957.  Like Texas, California updates its plan on a five year basis, though it follows a centralized and top-down rather than regionalized and bottom-up approach.

The CWP is intended to serve as “[t]he plan for orderly and coordinated control, protection, conservation, development, and utilization of the water resources of the state.”  Cal. Water Code §§ 10004(a); 10005.  It is supposed to have a  “general, tentative, and flexible character”  and represent only “a coordinated proposal for the progressive and comprehensive future development of the state’s water resources.”  Johnson Rancho County Water Dist. V. Yuba County Water Agency, 45 Cal. Rptr. 589 (Cal. Ct. App. 1965).

Still, as in Texas, the CWP carries consequences and affords distinct benefits to projects included within it.  Certain financing programs may, for instance, require conformance with the CWP as a condition of  eligibility, e.g., Cal. Water Code § 12883.

The agency that produces the CWP is the California Department of Water Resources.  In January, three separate state agencies – the California Natural Resources Agency, the California Department of Food and Agriculture, and the California Environmental Protection Agency – jointly released the California Water Action Plan (CWAP).

According to an accompanying press release, the purpose of the plan is to “guide state efforts to enhance water supply reliability, restore damaged and destroyed ecosystems, and improve the resilience of our infrastructure.”  This language includes words that imply a peril – “damaged,” “destroyed,” “resilience” – and yet in its general orientation treads much the same ground as the description of the CWP, which already accounts for matters like water supply, ecosystems, and infrastructure.

The CWAP itself says that it “lays out our challenges, our goals and decisive actions needed now to put California’s water resources on a safer, more sustainable path.”  Yet the executive summary to the public review draft of the 2013 CWP says the CWP is supposed to “guid[e] the management and development of water resources under these emerging conditions and expectations, and in the face of an uncertain future.”

Again, the purposes of the CWP and the CWAP seem to overlap.  Indeed, the CWAP refers to the CWP only once, in a proposed action to update the DWR’s assessment of groundwater resources so that more current information on groundwater can be included in the next CWP.

Beyond that, the expected relationship between the CWAP and CWP is not obvious.  In terms of content, the two documents are quite different.  The CWAP is a prodigious multi-volume work and includes a significant amount of technical data.

The CWP is a relatively high-level nineteen page document that consists of narratively written policy proposals.  It identifies eight broad challenges: (1) uncertain water supplies; (2) water scarcity/drought; (3) declining groundwater supplies; (4) poor water quality; (5) declining native fish species and loss of wildlife habitat; (6) floods; (7) supply disruptions; and (8) the amplifying effects of population growth and climate change.

And to address those challenges, the CWAP proposes ten equally broad actions: (1) make conservation a California way of life; (2) increase regional self-reliance and integrated water management across all levels of government; (3) achieve the co-equal goals for the Delta; (4) protect and restore important ecosystems; (5) manage and prepare for dry periods; (6) expand water storage capacity and improve groundwater management; (7) provide safe water for all communities; (8) increase flood protection; (9) increase operational and regulatory efficiency; and (10) identify sustainable and integrated financing opportunities.

Both the CWAP and the CWP were developed through public processes and reflect stakeholder input, though as a much shorter and simpler document, the CWAP was turned around relatively quickly, with a public review draft released in October 2013 and a final version released in January 2014.

The final draft differs in some material respects from the public review draft.  It strengthens the language about the effects of climate change (i.e., “Rising air temperatures and air pollution may already be decreasing the Sierra snowpack” has been replaced with “The Sierra snowpack is decreasing, reducing natural water storage, and altering winter and spring runoff patterns.  This is most likely the result of higher temperatures and may also be related to air pollution that deposits fine particulate on the surface of snow.”).

It calls for improved groundwater management that the public review draft does not, and it adds an ambitious new conservation target: holding total  urban water consumption at 2000 levels until 2030.

The CWAP is different from the CWP in that it “identif[ies] key actions for the next one to five years that address urgent needs and provide the foundation for sustainable management of California’s water resources.”  In that sense, the CWAP has a much shorter time horizon; in fact, the length of time for which it recommends actions is as long as the planning cycle for the CWP.  But the CWAP actions – like the 2030 water usage target, for one – would certainly have ramifications beyond that five year period

Compared to the Texas comptroller’s special report, the CWAP is more substantive and more substantial – it is an actual policy document, “a plan,” and not simply a “report.”  It is similar to the Arizona “vision” in that it sets out the gubernatorial administration’s policy goals but it comes across as less palpably political and also – since California, unlike Arizona, has a formal statewide water planning process – presents less data.

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