Rivers of Diversity Evolving Water Regulation in California and the European Union Gabrielle Bouleau UMR G-EAU Cemagref, Montpellier, France Matt Kondolf LAEP UC Berkeley, USA

Aquatic Biodiversity and Water Rights Aquatic and riparian areas Biodiversity hotspots Species fitted to natural flow patterns Principal threats on biodiversity Once pollution is treated Water diversions As climate changes Restoration demands that existing water rights be modified Leeway for adaptation exists in California’s and the EU’s water regulations

Unexpected comparison

Both entities faced similar challenges Diversity of landscapes elevations from 80 m below sea level to over 4000 above from desert to humid temperate forests Diversity of impacts Massive industrialization inducing huge losses in ecological habitats Diversity of strong political oppositions Powerful corps of water engineers Subsidized irrigation Limited budget for environmental policies Internal divides among ecologists

Conflicting water rules in California No clear-cut doctrine of water allocation in California Riparian: unimpaired right of the natural water flow (subjected to reasonableness) beneficial use: prevents speculation and monopoly, maximises society’s productive use pueblo rights: priority to urban uses Additional rights at federal level CWA (designated uses) + ESA (no take) Ironically main users are federal agencies… Competition of rights creates room for adaptation Piecemeal litigations set the scene for public debates and adaptation

EU laws and States’ discretion (ex. France) Historical State’s discretion in allocating water rights Historical rights : Lords’ strategy traded allegiance State engineers defining public utility Little binding environmental quality standards The EU creates no “rights” Imposes performance on Member States Environmental quality standards Ecological quality standards Cost recovery Empowering the public through reporting A place to challenge existing rights A political arena for environmentalists

Comparing both regulations California and US lawsEU laws Similarly targetting efficiency Cost-benefit analyses to enforce the Californian ‘beneficial and reasonable use’ doctrine to review environmental impacts under CEQA cost-effective measures to restore water quality Exemptions to be justified by the absence of cost-effective alternative Empowering civil society Consultation under CEQA flagship species under ESA Mandatory reporting with cumulative effect (data) esoteric indicators Openness to negotiations no (official) exemptions to ESA disproportionate costs cost-effectiveness analysis

Comparing both regulations California and US lawsEU laws Further degradation under scrutiny no taking under ESA downgrading standards under CWA to be justified no further degradations changes allowed for « the general public interest » Undisturbed nature playing the role of radical critique no taking under ESA Integrity when achievable under CWA fish in ‘good condition’ under the F and G code Minimal Anthropogenic Impact under WFD waters not heavily modified Algae, fish, Invertebrates

Adaptation to Climate Change Dealing with diversity made California and the EU adaptive Clear-cut doctrines allocate water as property-rights The EU and California challenge their efficiency To preserve biodiversity under CC, water rights should be curtailed Strong economic interests to maintain the status quo California’s and the EU’s laws can challenge water rights With the support of an ecological radical critique Redefining natural variability public participation to the definition of ecological goals vs revisable metrics Monitoring is a key issue