Mcle Self-study Article Groundwater Recharge Projects: Considerations for Water Managers and Neighboring Landowners

• Jurisdiction: California,United States
• Author: Kevin W. Bursey
• Publication year: 2020
• Citation: Vol. 38 No. 3

MCLE Self-Study Article Groundwater Recharge Projects: Considerations for Water Managers and Neighboring Landowners

Check the end of this article for information on how to access one MCLE self-study credit.

Kevin W. Bursey

Kevin W. Bursey is an attorney in Sacramento where he practices agribusiness, administrative, and regulatory compliance, and water law. Kevin graduated from McGeorge School of Law in 2019 with a concentration in water and environmental law.*

I. INTRODUCTION

California has developed an insatiable reliance on groundwater. Demand for water in California far outpaces its supply, and, as a result, water users are faced with a hard choice: increase local supply or reduce groundwater pumping. This imbalance might not have been so severe had California expanded surface water supply and not been the last western state to regulate groundwater use. Now—after almost a century of mismanagement—California has decided to begin addressing its groundwater woes. Although many tools will be required to reverse unsustainable trends, one increasingly popular idea is the use of surface water for groundwater recharge and banking. In an effort to address these problems, the state enacted a new regulatory process to streamline opportunities for groundwater recharge and banking.

This article provides an overview of groundwater recharge and its benefits, examines the state's new framework for implementing recharge projects, and considers significant issues for project managers and neighboring landowners.

II. BACKGROUND: CALIFORNIA GROUNDWATER & GROUNDWATER RECHARGE

Worsening droughts, growing population, expansive regulations protecting endangered fish, and a myriad of other stresses have compounded surface water scarcity in California. The result has been a long-term, unsustainable reliance on groundwater supplies to offset lack of surface water.

For most of California's history, groundwater has been managed locally with almost no state regulation largely because it is viewed culturally and legally as an all-important incident of property ownership. Groundwater rights have occupied a more unique role than surface water rights in the realm of real property. One of the differences has been that groundwater is regulated more at the local level than at the state level. Similar to real property, local regulation of groundwater makes sense because of the enormous variety of land uses and hydrologic conditions in a state as large as California.¹

Until 2014, few restrictions were placed on the extraction of groundwater.² Unlike surface water, there was no comprehensive scheme for allocating groundwater rights.³ California left that to local government or adjudication by the courts. Adjudication of groundwater rights traditionally have been styled as quiet title actions to settle conflicting claims to property.⁴ California also allowed the formation of special districts with limited powers to replenish groundwater districts and institute actions or proceedings to adjudicate water rights.⁵

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The Sustainable Groundwater Management Act ("SGMA") was enacted in 2014 to tackle almost a century of unaddressed problems related to groundwater overdraft by restricting pumping to sustainable levels over the next twenty years.⁶ SGMA requires formation of groundwater sustainability agencies (GSAs) to prepare groundwater sustainability plans (GSPs) to achieve sustainable yield.⁷ As GSAs and other local agencies hastily work to achieve sustainability by the 2040 deadline, many are confronted with either increasing local supply, reducing landowners' ability to pump, or a combination of both.

To avoid the harsh realities of reduced pumping, GSAs and local agencies will increasingly look to groundwater recharge and banking as tools to expand local supplies and ease the severe economic impacts that would follow pumping restrictions.⁸ Despite growing demand for groundwater recharge in California—and despite past successes with recharge projects—until 2019, there was no established legal framework for such projects. The urgency to balance groundwater levels under SGMA prompted the state to enact a new permitting framework to streamline opportunities for recharge. Although this new permit system is limited in application to the SGMA context, and is limited to temporary permits, the regulations are a first and important step toward developing a broader regulatory framework for groundwater recharge and groundwater banking.

III. WHAT IS GROUNDWATER RECHARGE AND BANKING?

Groundwater recharge is the augmentation of groundwater by natural or artificial means.⁹ Some recharge happens naturally when water flows into the ground from rivers, unlined canals, irrigation, or between adjacent aquifers. Recharge is also done intentionally to restore groundwater levels and store for later use. Where, when, how much, and how fast water can be recharged or banked depends on availability of conveyance infrastructure, soil and crop suitability, and aquifer characteristics that enable rapid recharge rates.¹⁰

Recharge projects involve either direct recharge, where water is injected into aquifers or flooded over porous soil to percolate underground, or indirect recharge (i.e. "in-lieu" recharge), where surface water is substituted for groundwater pumping.¹¹ Some projects seek to leave water underground, whereas others seek to extract and use the recharged groundwater. So-called "groundwater banking" projects are sometimes used to create an accounting framework that allows landowners to store, transfer, and trade basin supplies through a central management agency for the purpose of increasing economic efficiency and balancing supplies.¹²

Intentional recharge is undertaken for a variety of purposes across California at present, and more projects are contemplated. The San Joaquin Valley's agricultural region in particular is expected to undertake many new projects as it is home to some of California's most complex and intractable water problems, considered ground zero for SGMA implementation.¹³

Traditionally, the most widespread recharge methods in the San Joaquin Valley include seepage from unlined canals and streambeds, flood irrigation, and in-lieu recharge (defined above). While there already are many established projects in the San Joaquin Valley, there is significant potential for increased on-farm, fallowed land, and open space recharge and the construction of recharge basins.¹⁴ Many water districts have purchased land in recent years to develop recharge basins.¹⁵ There is also potential for injection wells, which are nearly absent from the region and are more common in urban Southern California.¹⁶

Many new groundwater recharge and banking projects are being contemplated throughout the San Joaquin Valley in an effort to achieve sustainability under SGMA and store for use in dry years. While GSAs have proposed combinations of projects to expand supply and actions to reduce pumping, almost 80 percent of proposed projects in the San Joaquin Valley involve supply expansion—the majority of which are recharge projects.¹⁷ Investments in supply are essential to avoid even costlier fallowing of 500,000 to one million acres of irrigated farmland due to pumping restrictions.¹⁸ Access to surface water when available will be a key factor in determining which croplands stay in production, and which lands are retired.¹⁹

A critical question is how much water is available for recharge given surface water scarcity. California's water supply in any given year is largely determined by a handful of big weather events and winter floods, which are hard to capture in surface reservoirs because reservoirs need to be simultaneously managed for flood control.²⁰ California's groundwater basins can store much more water than surface water reservoirs, but recharge is most effective in wet years when there is too much water to store in surface reservoirs and the excess can be banked underground.²¹

Although most current recharge projects involve agricultural and urban water suppliers replenishing water at their locations, recharge can also be accomplished via "groundwater banks."²² Groundwater banks are essentially collective underground storage projects, located in areas with soil and other conditions conducive to recharge; such banks store water on behalf of both local water users, and water users located elsewhere who transfer water into and out of the bank.²³ Groundwater banks rely on "formal accounting system[s] to keep track of balances, which decline during dry times as members withdraw water and increase during wet times as water is deposited back in" for future extraction.²⁴ At present, several groundwater banks in the San Joaquin Valley buy water from state and federal water projects to store underground for use in dry years.²⁵ Such groundwater banking is promoted as a promising way to stabilize California's water supply without the challenges and costs associated with expanding surface storage.²⁶ Groundwater banking will not solve the state's sustainability problems—even if California captures and banks all potentially available water, a significant groundwater deficit would remain due to long-term overdraft—but banking would be a meaningful step toward sustainability.²⁷

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IV. BENEFITS OF GROUNDWATER RECHARGE & BANKING

Groundwater constitutes approximately 40 to 60 percent of California's water supply, depending on surface water conditions in dry years.²⁸ Successful recharge projects provide many benefits: they can help bring local basins into balance, and play a role in supporting California's agricultural economy.²⁹ Recharge and banking can also provide environmental habitat for wildlife, help restore vital interconnections to rivers and streams, provide a freshwater barrier to seawater intrusion, prevent further subsidence and damage to water conveyance infrastructure, and strengthen the state's overall drought resilience.³⁰

Expanding recharge will also help address water management and...