Earlier this year, Governor Newsom issued Executive Order (EO) N-16-25. That order is designed to facilitate the diversion and storage of flood flows and aligns with the Governor’s broader water supply strategy, which is focused on attacking the misalignment between water supply and demand while also factoring in the impacts of climate change. But the questions remain: will it be effective and will there be any unintended consequences?
The Executive Order
One key aspect of EO N-16-25 is that it waives a part of Water Code section 1242.1 that required a regional or local agency to have adopted a local flood control plan or to have considered flood risk in its most recent general plan. That water code section was created in 2023 by Senate Bill 122. It provides that the diversion of floodflows does not require an appropriation right as long as it meets certain conditions. Those conditions include the waived one, public notice, and the use of existing infrastructure. Water Code section 1242.1 also includes limitations on diversions including no new permanent infrastructure for the diversion, limitations on the areas to which the water is diverted, and certain requirements for the Sacramento-San Joaquin Delta. The code section only allows diversions from July 10, 2023 to January 1, 2029.
EO N-16-25 also included sections ordering the Department of Water Resources (DWR) to “take all feasible and appropriate action to maximize diversions of excess flows that become available as a result of the anticipated winter storms, and other winter storms, to storage … .” DWR, the State Board, and other agencies are also “directed to identify any obstacles that would hinder efforts to maximize diversions to storage of excess flows that become available as a result of the anticipated winter storms, to remove or minimize such obstacles wherever possible, and to promptly report to my office any additional statutory or regulatory barriers that should be considered for suspension.”
Reactions
As with essentially anything the government does, there were mixed reactions from interested parties. The Association of California Water Agencies (ACWA) provides an example of positive feedback, focusing on the protection from flood waters provided by the EO as well as utilizing this otherwise wasted water. Conversely, San Francisco Baykeeper represents an example of a negative reaction, expressing concerns about the impacts on ecosystems and other issues.
Impacts
The net result of the requirement waived by the EO was that no one could actually use the Water Code section because no one could meet that requirement. In the months since the EO was issued, as detailed on the State Water Resources Control Board’s (State Board) webpage on the issue (which also includes forms and other helpful information), the Water Code section has been utilized for diversions of 112, 112, and 275 acre-feet (AF). The frequency still shows a marked difference from prior executive orders (which SB 122 were meant to codify) The State Board’s webpage on those diversions shows that they were used 78 times in 2023, 76 of which were in March and April. Those 78 diversions had a range of 5 to 244,030 AF, with 71% under 1,000 AF.
Experience under the EO as well as the previous versions of it shows that floodflows provide a real opportunity for water providers and users to acquire new water at a very low cost, especially relative to other options. Since parties not only can, but are required to, utilize existing infrastructure, experience has shown that diverting floodflows can be cost effective for even just 5AF. On the other side of the issue, the nearly 250,000 diverted under the previous versions of the EO shows the massive opportunity that these flood flows can provide to parties looking to increase their water supply, especially as the state institutes restrictions on use of other sources such as under the Sustainable Groundwater Management Act (SGMA).
As we wrote about previously, the other portions of Governor Newsom’s EO are similar to actions taken by President Trump. However, seeking to identify unnecessary or harmful regulations should not be considered a political issue. While politics may inform one’s view of what is necessary or harmful, all sides should see the value in seeking to understand the perspectives of the regulators and the regulated community, both of whom have first-hand experience with how regulations that may sound good on paper actually work out. If both sides see this as an opportunity to improve water management in the state rather than a political game, the EO could lead to real positive changes.
The effectiveness and unintended consequences will only be properly evaluated over time. The EO has, at the least, been effective in making Water Code section 1242.1 effective and enabling beneficial use of water that would otherwise be wasted (and could be harmful depending on the extent of the flood). For the rest, the devil is in the details, and only time will tell.
