Local authority crucial to managing groundwater

Dramatic declines in groundwater levels and a record drought have made groundwater management reform in California a priority for discussion in the California Legislature and a call for change. Among the principal reasons given for these changes are the lack of available data and the need for new laws and state oversight. It is true that we have no centralized regulatory entity that oversees groundwater use, and overdraft is ever worsening in some portions of the state.

The cause of groundwater overdraft in California, however, is not a failure of our laws per se.  In California groundwater may only be harvested in quantities that do not exceed a baseline supply, commonly known as “Safe Yield”.  In short, we may lawfully take only that quantity of groundwater that can be safely removed without causing harm to others and the environment.

To the extent practicable, we must manage groundwater locally with legal authority that is wielded coterminous with a defined groundwater basin.

In the end, it is not a failure of our amply protective Safe Yield standard that is to blame for overdraft but rather the failure to enforce it that has led to the call for a State backstop. Local management by band aid has very little to do with true groundwater management.  Rather than focusing our attention on creating uber districts with special powers or buttressing the powers of cities and counties so they can manage groundwater, it would be better to focus our attention on some of the causes for our present failures and direct our efforts to giving local stakeholders the tools to complete the task.

We must require uniformity through Safe Yield management now.  While we can be agnostic as to the identity of which agency, state or local that is going to actually regulate,  “Safe Yield” management should be the standard for all that do.  The primary critics of the Safe Yield standard claim that it does not protect environmental harm but it certainly does by definition and as applied, it always has.  The addition of a new duplicative standard of “Sustainable Yield” may have some political appeal but in practice it will only invite new rounds of litigation challenging the standard and frustrating the primary objective of obtaining management.

To the extent practicable, we must manage groundwater locally with legal authority that is wielded coterminous with a defined groundwater basin.  There are more unique opportunities for improvement in efficiencies in management of groundwater than with surface water because groundwater use is not dependent upon short-term precipitation.  The groundwater basin itself can provide a cushion to dampen fluctuations in the hydrologic cycle.  However, successful implementation requires consideration of regional hydrologic and cultural conditions that are best suited to local control and buy-in, not dictation from a distant bureaucrat.

From there, local trading can improve efficiency and offer drought coverage when there are shortages in surface water and not exacerbating overdraft.

Presently, there is no statewide reporting of groundwater use. To address the information deficit, we can require groundwater users that pump more than 25 acre-feet per year it report their use.  Four counties within Southern California already file reports. (See Water Code Section 4999).  A user in these areas that fails to file does so at their own risk of loss of their water rights.  By simply expanding the geographic coverage of the existing statutes to the entire State, we can provide a quantum leap forward in our information about groundwater use.

We can jump start the process of consensual local management by providing State funding incentives for management success.  There is likely no better investment in stemming the tide of overdraft and groundwater declines than to provide financial reimbursement of technical costs incurred in actually putting management in place.  The qualification, timing and the amount of reimbursement can be made on per AFY subject to management and contingent on either a Court or the State approving a management plan.

While water rights are undeniably property rights, groundwater is a shared public resource.  Only after setting the total quantity baseline as Safe Yield and establishing individual allocations can market forces take hold.  From there, local trading can improve efficiency and offer drought coverage when there are shortages in surface water and not exacerbating overdraft.  Where accomplished through agreements among competing users, the agreements can be filed and approved by a court to provide long-term benefits. We must streamline the legal process and make it less costly to establish Safe Yield management so that when consensus to curb overdraft cannot be reached, the failure is not free from regulatory consequence.  This will send a message  to stakeholders that they should stay at the bargaining table and finish the job or risk regulation not only by a state backstop but also more immediately by people seeking expedited relief from the courts.

Ed’s Note: Scott Slater is a shareholder with Brownstein Hyatt Farber Schreck and the author of California Water Law and Policy.



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