Attorney, Pacific McGeorge School of Law, J.D. 2013
Sept. 12, 2014
In the midst of California’s most severe drought in thirty years, legislators took an historic step towards remedying its long-term negative impacts on the state’s groundwater supply. On Friday, August 29th, the California Senate and Assembly passed a package of bills (SB 1168, SB 1319, and AB 1739) which aims to regulate the extraction of groundwater and establish a sustainable program of groundwater management over the next 50 years. AB 1739, working in tandem with SB 1168 and 1319, would require the creation of groundwater management agencies to regulate the extraction of groundwater for the first time in California history.
Unlike surface water, the appropriation and use of which is subject to a strict permitting process, the pumping and use of groundwater is subject to no such regulation. Surface water from rivers, streams and reservoirs, has been subject to a permitting system since 1914. Prior to the issuance of a permit, the State Water Resources Control Board (Water Board) must conduct an environmental review, allow for public notice and comment, and resolve any protests filed.1 Appropriative rights holders are subject to the demands of rights holders who hold a “senior” appropriative right, and in dry years, the most junior rights holders could see their water right evaporate almost completely. The most important effect of this regulatory framework, is that it allows the state to monitor how much, and for what purpose, its surface water resources are being used, and to control any potential changes in points of diversion or use through cease and desist orders, or, in more extreme cases, revocation of the appropriative right.
By contrast, despite accounting for 39% of all of the water used in California on average, and as much as 60% in severe drought years,2 groundwater has been governed, with few exceptions, by property law principals, allowing nearly unfettered pumping of groundwater as part and parcel to ownership of the overlying land. While many counties have adopted ordinances to require permits for the drilling of new or modification of existing wells, the state has historically had no control over how many wells are drilled. So what caused California, the last western state to enact groundwater regulation, to upend more than a century of water and property law? Cripplingly low water levels throughout hundreds of water basins that run nearly the entire length of California’s Central Valley, spurring the unprecedented drilling and deepening of wells by domestic and agricultural water users throughout the Sacramento and San Joaquin valleys.
Over the past three years, California’s drought has caused more and more farmers to rely in large part upon the pumping of groundwater to satisfy their irrigation needs.3 As California’s drought becomes more and more severe, the go-to alternative for farmers when surface water is exhausted is to pump groundwater. With the extreme demand being placed on California’s aquifers, farmers and domestic users alike have been prompted to drill more wells, or deepen existing wells. Low groundwater levels likely precipitated this increase in well-drilling and well-deepening, with the Department of Water Resources data reporting the San Joaquin having experienced more drastic change in groundwater levels than in most other regions in the Central Valley.4 California lawmakers hope the bill package sent to the governor will remedy this issue over the long term.
This package of bills, however, was not the first time California lawmakers attempted to reign in excessive groundwater extraction. In 1993, the California Assembly passed the Groundwater Management Act (AB 3030)5 with much the same goals in mind. AB 3030, much like the recent bill package, was aimed at establishing groundwater management plans through state and local water providers and agencies to monitor groundwater levels and quality. However, AB 3030 did not require the formation of groundwater management programs; rather it permitted local agencies to develop them. Furthermore, conspicuously absent from AB 3030 was the authority to suspend or limit the extraction of groundwater, except in extreme and limited circumstances.6 AB 3030, though a step in the direction of groundwater regulation, placed no limits on extraction, did not require self-reporting by water extractors, and, at most, gave authority to collect fees for the extraction of groundwater to fund the groundwater management agency’s activities.
What makes this recent package of bills so historic? For the first time, all basins designated as high to medium priority basins subject to critical conditions of overdraft must be managed by a groundwater management plan, and the bills specifically grant authority to suspend, restrict, and require annual reporting of the extraction of groundwater. While this bill package stops short of establishing a statewide permitting process similar to that for surface water, a groundwater management agency will have the ability to “regulate, limit, or suspend…the construction of new groundwater wells, enlargement of existing groundwater wells, or reactivation of abandoned groundwater wells,” and a groundwater management agency may request that the permitting county send permits to the agency for review before approval.7
For farmers who have grown increasingly more and more dependent upon the pumping of groundwater to meet water requirements, the bill package does not come as a welcomed change. Groups like the Association for California Water Agencies have come out in support of the measure, with the California Water Foundation and The Nature Conservancy both lauding the measure as taking the appropriate step towards sustainable groundwater management.8 On the other side, there has been near “unanimous” opposition from the agricultural community.9 Many legislators who opposed the bill package believe that the bills overreach and unduly punish agricultural and domestic groundwater users who have been responsibly managing their groundwater for years.10 The true effect of the bills package will likely take many years to see, as groundwater agencies have until 2017 to establish groundwater management plans with the new authority granted them under the bills.
1 State Water Res. Control Bd., The Water Rights Process, http://www.waterboards.ca.gov/waterrights/board_info/water_rights_process.shtml#process (last visited Sept. 3, 2014)
2 Dep’t of Water Res., Public Update for Drought Response Groundwater Basins with Potential Water Shortages and Gaps in Groundwater Monitoring, see Figure 3 “Contribution to California Water Supply By Hydrologic Region” http://www.water.ca.gov/groundwater/data_and_monitoring/DroughtReport_April2014/03_remastered.pdf accessed 9/3/2014
3 Sasha Khokha, Drought Has Drillers Running After Shrinking California Water Supply, http://www.npr.org/2014/06/30/325494399/drought-has-drillers-running-after-shrinking-california-water-supply (last visited Sept. 8, 2014).
4 See supra Figure 9 “Groundwater Level Change Spring 2013-Spring 2014 http://www.water.ca.gov/groundwater/data_and_monitoring/DroughtReport_April2014/09_remastered.pdf (last visited Sept. 4, 2014).
8 http://mavensnotebook.com/2014/08/30/reactions-legislators-and-organizations-respond-to-the-passage-of-groundwater-legislation/ (last visited Sept. 3, 2014).