All groundwater is local: California's new groundwater monitoring law.

AuthorPatashnik, Josh


In November 2009, the California Legislature passed, and Governor Arnold Schwarzenegger signed into law, a package of water legislation amounting to possibly the single biggest overhaul of the state's water system in nearly half a century. (1) The package included a new governance system for the state's water hub, the Sacramento San Joaquin River Delta; (2) mandatory water conservation and efficiency measures for urban, industrial, and agricultural users; (3) and new penalties for failure to report diversions of surface water to the state. (4) The package also placed before voters a bond measure--initially scheduled for the November 2010 general election but since pushed back to 2012 in the wake of the state's ongoing fiscal crisis (5)--that sought to provide more than $11 billion in funding for water infrastructure projects. (6) The bills passed on bipartisan votes, which are increasingly rare in the California Legislature, and won praise from across the ideological spectrum. (7)

Yet the whole effort was very nearly derailed by the intense controversy surrounding a seemingly minor element of the package: groundwater monitoring. (8) The fifth and final bill ultimately approved by the legislature, S.B.X.7 6, requires that all groundwater basins be monitored by state or local agencies by 2010 to gauge the rate at which water is being extracted and recharged. (9) That such an obscure, innocuous-sounding provision could almost undo a massive and comprehensive legislative compromise is a testament to the high stakes associated with the ongoing struggle to sensibly manage California's vital groundwater resources. The opposition to S.B.X.7 6 stemmed largely from a fear among water users in some parts of the state that it might open the door to intrusive statewide groundwater management from Sacramento. Upon closer inspection, though, the bill represents an uneasy but promising compromise: it continues the state's decades-long trend of placing local governments and landowners, rather than state agencies, in charge of regulating groundwater resources but seeks to ensure that those entities make decisions in full view of the impact their choices will have on their communities.

This Note first describes the background against which S.B.X.7 6 was enacted. Much of California depends upon groundwater to augment meager surface water resources. While some areas of the state have developed effective groundwater management programs in response to decades of litigation and overdraft, others have long lacked even basic monitoring systems. I then outline the provisions of S.B.X.7 6 and discuss its likely effects. While by no means a panacea to the state's groundwater problems, the bill represents an important step toward progress within the framework of California's tradition of local groundwater management. It demonstrates that the centralized groundwater management approach used in other Western states is not the only viable means of regulating groundwater, particularly in a large, economically and geographically diverse state like California.


    1. California's Reliance on Groundwater

      Californians rely heavily on groundwater to meet their basic daily needs. Groundwater withdrawals account for twenty-nine percent of the state's water supply in a year with average rainfall; in a dry year, thirty-nine percent. (10) In the surface-water-poor Central Coast region of the state, groundwater accounts for more than eighty percent of supply. (11) Yet California is one of only two western states--Texas is the other--that lacks a statewide permit system governing who may withdraw groundwater in the state. (12) Rather, California adheres to the common law doctrine of correlative rights in groundwater, under which landowners may pump as much water as they like, provided they put it to beneficial use and do not interfere with the ability of other landowners to do the same. (13) Groundwater adjudication actions, in which one or more landowners seek to restrict pumping by other parties in a basin underlying their land, are rarely even brought in the first place: most would-be plaintiffs are deterred by the expense of litigation and the fact that courts tend to order all overlying landowners, including the plaintiffs themselves, to reduce their pumping. (14) Not surprisingly, the result, at least in some parts of the state, is a classic tragedy of the commons: the Department of Water Resources (DWR) estimates that aquifers in California are overdrafted at a rate of between one and two million acre-feet (maf) annually. (15) Using satellites that monitor small changes in the Earth's gravitational field due to groundwater movement, NASA estimates that the Central Valley and Sierra Nevada regions of the state lost more than thirty cubic kilometers of groundwater between 2003 and 2009-enough to nearly fill Lake Mead, the largest reservoir in America. (16)

    2. Successes in Local Groundwater Management

      That is not to say, however, that California's groundwater management is uniformly bad in all regions of the state. On the contrary, heavily populated areas of Southern California boast some of the most thorough and innovative groundwater management techniques in the country, developed in response to serious overdraft problems and subsequent litigation in the middle part of the twentieth century. (17) Most of metropolitan Los Angeles overlies six groundwater basins, each of which is managed by local government to limit groundwater withdrawals so that no more water is pumped out of the basin than is recharged into it. (18) A seventh basin, in Orange County, injects imported and treated water into its aquifer to maintain groundwater levels. (19) These basins have managed to enforce compliance with pumping restrictions, administer their regulatory systems at low cost, and direct water to where it can be put to its most valuable use. (20)

      The success of local groundwater management in these cases has been a primary motivating force behind California groundwater policy over the last three decades, which has continually emphasized local empowerment. Indeed, as Professor Joseph Sax has noted, the success of urban, coastal basins in Southern California in responding to groundwater crises "undoubtedly relieves the pressure to reform the system globally." (21) In 1978, the Governor's Commission to Review California Water Rights Law recommended that, instead of adopting the sort of statewide regulatory system common in other western states, local groundwater management should be encouraged and expanded in California. (22) Nor have the courts been inclined to use the common law to fashion a more robust set of statewide groundwater controls. They have repeatedly emphasized that courts lack either a statutory or constitutional basis for crafting groundwater policy aside from adjudicating disputes between overlying landowners in a basin. (23)

      Instead, the legislature has given more than twenty types of local agencies the statutory authority to manage groundwater. (24) In 1992, it enacted Assembly Bill 3030 (A.B. 3030), the Groundwater Management Act, which expanded the powers of local government to implement legally binding groundwater management plans. (25) And state courts have held that in the absence of a statewide permitting system, counties retain the ability to enforce pumping restrictions on groundwater under their police power. (26) Armed with this variety of tools at their disposal, twenty-seven of California's fifty-eight counties have adopted groundwater management ordinances. (27) Moreover, among those that have not are a number of counties, like Los Angeles and...

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