A dry century in California: climate change, groundwater, and a science-based approach for preserving the unseen commons.

Author:Perona, John J.

    There is yet another drought in California now, this one among the most severe in its history. (1) Around the many reports of dire facts and figures, and anecdotes of personal hardships, it is still possible to find the optimism that once consistently prevailed during such times--a notion that the weather reliably runs in cycles, and that better, wetter days are coming soon. (2) But as the dry months turn into years, with little respite apparently in sight, a more sober sensibility is also taking hold. (3) The warnings of the scientists are becoming difficult to ignore, and they have penetrated the public consciousness: no matter where you are, the climate is moving away from what you are used to. (4) And in the most populous parts of California, almost every climate model, every data-based prediction about the next century says that it is going to be getting ever drier. (5) The scientists' message has finally become loud enough to penetrate even the deafest of communities: the Sacramento legislature. After decades of inaction while all of the other Western states adopted comprehensive plans for managing their groundwater, this body has at last responded by passing its own Sustainable Groundwater Management Act (SGMA), (6) which became law on January 1, 2015. (7)

    The SGMA indeed opens new possibilities for conservation of the crucial groundwater resource, which is presently providing over fifty percent of the freshwater used in the state. (8) The Act creates new local agencies charged with protecting against groundwater depletion or other damage to the long-term viability of the resource, and confers substantial authority to enable execution of this goal. (9) It establishes a priority system to first manage those regions that are presently experiencing the severest shortfalls, effectively leveraging the emerging database of basin-specific groundwater levels created by the California Statewide Groundwater Elevation Monitoring (CASGEM) program in the Department of Water Resources (DWR). (10) And it strikes all the right chords in its comprehensive documentation of the many "undesirable results" to be avoided: chronic lowering of groundwater levels, impaired groundwater quality, seawater intrusion into aquifers, subsidence of surface land, and adverse impacts on hydrologically connected surface waters. (11)

    The SGMA is surely a significant, long overdue step in California's ongoing saga to properly manage and conserve its freshwater resources. And yet, as presently formulated, it is very unlikely that the legislature has accomplished its stated goal to manage groundwater "sustainably for long-term reliability and multiple economic, social, and environmental benefits for current and future beneficial uses." (12) The problems arise because, rather than mandating the achievement and maintenance of well defined groundwater levels in its most stressed basins, lawmakers have instead taken refuge in the nebulous concept of "sustainable yield." (13) Further, by relying on a narrative standard that interprets compliance in terms of avoiding "significant and unreasonable" undesirable results, (14) the Legislature is providing little guidance to the agency that will actually administer the law, while also increasing the likelihood that difficult decisions will be made by the courts.

    In this Article, I suggest that the general framework of the statute is sound in its reliance on local authorities to sustainably manage groundwaters, but that the law must be amended--or regulations implemented by the State Water Resources Control Board (SWRCB) (15)--to replace the existing narrative standards with mandated, numerical criteria specifying defined levels of groundwater to be retained in each individual basin. Part II reviews the history of groundwater management in California, setting the stage for the SGMA. Part III then describes how the SGMA extends these prior efforts to conserve the resource. This section concludes with an analysis of why the statute's reliance on its particular notion of sustainable yield cannot provide a sufficiently clear and precise standard capable of sustaining groundwater levels in an era of continued population growth and climate change. In Part IV, I first explain why the local groundwater management scheme in the SGMA is consistent with the physical geography of the resource. Next, I describe how science-based management can be incorporated into the SGMA, with a goal of halting the present sharp declines in some groundwater basin water levels. Finally, I address the need for additional research to provide science-based guidance for difficult issues associated with land subsidence and conjunctive management. This proposal also seeks to raise awareness of how law and science can practicably work together to preserve the groundwater commons in California.


    Unlike other Western states, California lacks an integrated legal and administrative scheme for conjunctive management of its surface and groundwaters. (16) The roots of this division lie in the Water Commission Act of 1913, (17) which created an appropriation permit system for surface water rights but, with one exception, failed to mandate a similar process for allocation of the groundwater resource. (18) Owners of overlying land have thus retained rights to pump groundwater and are generally restrained only by the judicial correlative rights doctrine. (19) The exception in the 1913 law has been retained to this day as section 1200 of the California Water Code. (20) In its entirety, this section provides: "Whenever the terms stream, lake or other body of water, or water occurs in relation to applications to appropriate water or permits or licenses issued pursuant to such applications, such term refers only to surface water, and to subterranean streams flowing through known and definite channels." (21)

    Because such "subterranean streams" are very rare in California, (22) this provision excludes almost all of the state's groundwater from the requirements of a permitting system. (23) Section 1200 remains in force after enactment of the SGMA, which explicitly states that the new local agencies it creates will lack permitting authority. (24) Remarkably, this entirely artificial division between surface and groundwaters still persists despite longstanding recognition, dating back at least to the seminal Katz v. Walkinshaw decision in 1903, that the two resources are hydrologically connected and fully contiguous. (25)

    Despite the absence of state-level regulation or permitting, the need to settle disputes and to provide some degree of certainty for water planners gave impetus to a variety of other mechanisms for groundwater management. (26) One such approach to resolve conflicts has been through court adjudication. A key case that determined how settlements are reached was City of Los Angeles v. City of San Fernando, (27) which established that groundwater basins should be adjudicated based on the correlative rights doctrine among overlying users and the prior appropriations doctrine for off-tract users." (28) Twenty-six of the 515 enumerated groundwater basins and subbasins in California, including many in the Los Angeles area, are presently subject to adjudication. (29) Local entities in these twenty-six basins are not subject to SGMA-mandated requirements to form a new sustainability agency. (30) Instead, the SGMA directs that the watermaster or other court-appointed body administering the court-ordered allocation plan must report groundwater elevation data, groundwater extractions in the preceding year, surface water supplies available for groundwater recharge, total water use, and changes in groundwater storage. (31)

    Although the concentration of adjudicated groundwater basins in populous regions makes this process significant, the primary authority for any groundwater management activity in California has always rested in local jurisdictions. (32) The state legislature has been active in this process to a point, by granting statutory authority to over twenty different types of local agencies. (33) The functions of these administrative bodies are diverse, and extend to the establishment of groundwater recharge programs and levying of pumping fees. (34) Local county ordinances have also proliferated. (35) Often these ordinances provide the authority to require permits for groundwater export outside the boundaries of the local jurisdiction. (36) Thus, some permitting of groundwater rights in California does exist at the local level. The principle of local control of groundwater use has been repeatedly reaffirmed by the legislature; (37) hence, the choice made in the SGMA to continue to vest authority for sustainable groundwater management in local agencies came as no surprise.

    Several pieces of legislation in the past several decades began to provide the basis for a groundwater management regime containing additional elements of statewide jurisdiction. In 1992, the legislature passed Assembly Bill 3030, (38) which offered a systematic procedure to implement groundwater management plans, thus providing guidance to local authorities. (39) However, reflecting the continued local resistance to state control, the law did not include a requirement for any local administrative entity to actually adopt such a plan. (40) Thus, many districts remained entirely unregulated. However, other state legislative actions followed: most...

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