California Groundwater Management: Laboratories of Local Implementation or State Command and Control?

• Jurisdiction: California,United States
• Citation: Vol. 25 No. 2
• Publication year: 2016
• Author: by David R.E. Aladjem and Meredith E. Nikkel
• topic: Environmental Law

California Groundwater Management: Laboratories of Local Implementation or State Command and Control?

by David R.E. Aladjem and Meredith E. Nikkel^*

David R.E. Aladjem

Meredith E. Nikkel

The controversy over local or unified governance was debated before the formation of the United States, and continues today. In The Federalist No. 46, James Madison rejects fears that establishment of a federal government would result in "a meditated and consequential annihilation of the State governments" and argues that the "federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes."¹

Over two and a quarter centuries later, the California Legislature passed a landmark groundwater law that embodies the different purposes and powers of both local and unified governance. Under the Sustainable Groundwater Management Act of 2014 (SGMA), the management of groundwater basins in California resides first in the hands of locals, the same hands that James Madison recognized were the "natural attachment of the people."² For Madison, the Union was "essential to guard them against those violent and oppressive factions which embitter the blessings of liberty."³ Similarly, SGMA depends on the state to guard against local politics interfering with the protection of the state's underground water supplies.

SGMA delicately balances local control and state command in a manner that has already seen mounting tension in its short lifespan. Empowered with regulatory control over groundwater supplies in their service area, local agencies have developed numerous techniques to self-organize and chart a path towards local management. At the same time, the state agencies with defined roles under SGMA have adopted formal regulations, informal guidelines and administrative practices that reveal a trend toward state-level control over groundwater management.

This article will explore the strategies deployed by local agencies to maintain control over the groundwater management requirements in the Act and the ways that state administrative bodies exercise regulatory control of those efforts. We will also analyze the ways in which these approaches are meeting SGMA's statewide goal of local governance tailored to local circumstances with support for those local institutions from the state. Through this analysis we will identify areas where state control should be avoided and areas where state control may be required. Finally, we will offer our thoughts on how the state can best work with local entities in order to achieve the goal of sustainable groundwater management.

In the end, we believe that SGMA has the potential to bring our founding fathers' guidance to life by entrusting state and local governments with different powers to act together as trustees for the people and their groundwater supplies.

I. THE SETTING

In 1951, the California Department of Public Works (now the Department of Water Resources, DWR) issued "Water Resources of California," its first statewide bulletin. Even then, DWR recognized that occurrence and availability of groundwater is unique to the physical conditions existing in areas throughout the state.⁴ DWR noted that groundwater supplied about half the water use in California in 1949.⁵ The Legislative Analyst's Office estimates that about 43 percent of Californians currently depend on groundwater, at least in part.⁶ Much of the state's vast farmland overlies groundwater basins and relies on groundwater for irrigation. So, while groundwater supply is based on local characteristics, demand is a matter of state and worldwide interest.

Groundwater has been managed locally since at least the formation of the Orange County Water District in 1933, and numerous other local entities have since been established across the state for this purpose. The Legislature in 2014 expressly acknowledged the importance of these local entities in finding that: "[g]roundwater resources are most effectively managed at the local or regional level."⁷ The legislative intent behind SGMA was expressly to manage groundwater "through the actions of local governmental agencies to the greatest extent feasible, while minimizing state intervention to only when necessary to ensure that local agencies manage groundwater in a sustainable manner."⁸ Since SGMA's enactment, local agencies across the state have taken the principle of local control seriously by actively engaging in the management process prescribed by the Legislature. For example, approximately 90 entities have already expressed their intent to serve as the groundwater sustainability agency for their service area.⁹ Indeed, in many areas the groundwater sustainability agencies overlap and local coordination efforts are well underway.

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Against this backdrop, we consider whether the center for groundwater management is best left to these local entities and how (if at all) the state should be involved.

II. PRINCIPLES OF LOCAL PRIMACY

SGMA was enacted with recognition of existing local regulation of groundwater extractions. Historically, those owning property overlying groundwater had absolute ownership of that groundwater, "to the same extent and as fully as [a landowner] own[s] the soil, or the rocks or timber on the land."¹⁰ This sentiment was deeply rooted in the common law of property that afforded individuals private rights to groundwater. Groundwater extractions were managed in the same way that landownership was managed: through the judicial process. This approach to management has resulted in a web of California case law that applies on a basin-by-basin or even well-by-well basis. SGMA acknowledges this historic approach to groundwater management by exempting groundwater basins that are subject to continued court jurisdiction from the requirements of groundwater sustainability planning under the Act.¹¹

In addition to the judicial process, the California Supreme Court held as early as 1933 that a county's police power is properly exercised over the control of groundwater extractions.¹² In a manner reminiscent of James Madison, the Court explained that although the police power of the state includes legislating about the management of water as it might affect public welfare, "[t]his does not mean, however, that this phase of the police power is to be exercised exclusively by the state legislature."¹³ The dual nature of groundwater as a uniquely local resource and at the same time available for statewide benefit requires dual coverage under state and local police powers.

In the first instance, SGMA continues this history of local control by allowing local agencies to take on the responsibility and authority...