Water law in California is painfully complex. Tangle with any of its multiple aspects — surface water, groundwater, water quality, water sources, water regulators, water administrators, to name a few — and you’ll soon learn that it cannot be understood in a crash course. Take groundwater, for example.
Groundwater is a uniquely difficult resource to regulate. Being below grade, groundwater can’t be seen. It is distributed across many property lines and away from visible surface water. Being below grade, it can defy quantification too. Invisibility makes it easier to ignore the consequences of groundwater’s depletion. Groundwater falls under the umbrella of California water law: In spite of well owners’ belief that they “own” the water, land owners have a only a shared right to the “reasonable and beneficial use” of the aquifer harbored beneath their property. This is vague, but means that water should not be used with disregard for other users and that overdraft is unacceptable. However, since there is no permit system, this “reasonable and beneficial” goes unenforced. Even so, those who own wells and are dependent on groundwater defend their unregulated right to pump fiercely. As a Fresno legislator once said, “Groundwater regulation is World War III.” Nevertheless, I will prove that groundwater regulation and enforcement are imperative, and then lay out the best option for groundwater regulation in California.
Rationale supporting the exigency of enacting groundwater regulation are: 1) the need to create and preserve sustainable water supplies, 2) the need to avoid potentially grave environmental degradation, 3) the need to support agriculture and food security, 4) the need for fresh drinking water, and 5) the need for water storage that does not incur evaporation.
Today, rising population increases the demand for fresh water, even as drought depletes the supply. (California Senate Bill X7-7, enacted in November 2009, requires a 20-percent reduction in per capita water use statewide by 2020.) The gravity of these dual and opposing exigencies is exacerbated by attendant environmental impacts associated with drought as well as the water diversion, treatment and transport to accommodate thirty-plus million thirsty Californians. These impacts, which make water supplies and water management unsustainable, have long been overlooked, while all eyes remain on the abiding reality – water must come from somewhere. One of those “somewheres” is below ground.
In the early twentieth century, the Central Valley aquifer, “which had collected over many thousands of years, was prodigious; before pumping began, it may have held three-quarters of a billion acre-feet. With the expansion of irrigation farming from a few thousand to millions of acres, however, the water table began to drop sharply. By the end of the Great Drought of the 1930s, the farms had so badly depauperated [sic] the groundwater that the depletion curves were precipitous. Twenty-thousand acres had already lost their groundwater and gone out of production; hundreds of thousands more overlay a groundwater table that was becoming dangerously low. Suddenly, the valley’s reserve of groundwater, which had so recently seemed limitless, had only a few more decades of economic life.” So it was obvious, even 80 years ago, that groundwater was not a reliable, must less sustainable source of water, unless it was managed. Yet no management or regulation ensued. This story illustrates one of the values of an aquifer — insurance against drought. Unsustainable practices may cause great amounts of growth and previously unimagined economic activity, but they are subject to inevitable busts. In the instance of water these busts correspond to droughts. A drought without groundwater to provide a safety net would be devastating to California’s $36 billion agricultural industry. In the words of Don Mills, a general manager of Kings County water district, said “After one year of no irrigation, it’s firewood, not peach trees.”
Another reason that groundwater must be regulated is that the current situation will never motivate users to conserve the aquifer. When it becomes clear that a commonly owned resource is finite and is going to be depleted in the long run, the people using the resource (behaving in a self interested way) will attempt to utilize to its maximum potential in the short term. The behavior of farmers reflects this paradigm, with many farmers phasing out row crops and vegetables in favor of more water-intensive fruit trees. Individual well users are motivated to draw as much water as possible, as quickly as possible, to make money while they can. Obviously, this results in overdraft. This continues because they do not bear the costs and negative impacts of their depletion individually, but instead the public must bear that responsibility, not just in the rising costs of produce but in addressing the costly environmental damages. Furthermore, well users are usually surrounded by other well users. This incentivizes them to compete for the resource. If they don’t draw as much as the other people that draw from the well, then they will end up bearing the cost of their neighbor’s consumption, but experience less of the benefit. So long as the incentives are this way, people with wells will continue to draw as much water as possible until the groundwater is depleted. So because the costs of depleted aquifers would be high and the problem can’t rectify itself without regulation, groundwater should be regulated.
The environmental costs of groundwater depletion are rather steep. The most obvious consequence is that of subsidence. Subsidence is when the ground sinks and it is a phenomenon in which California already has a significant history. Subsidence damages the slope of streams, canals and drains, roads, buildings, bridges, wells and all manner of infrastructure. Before imported Delta water became available in the mid-1970s, nearly 30 feet of subsidence had been measured in the San Joaquin Valley and up to 14 feet in the city of San Jose in the Santa Clara Valley. Estimated damages were in the hundreds of millions of dollars. The research of Robert Glennon, Ph.D. (Water Follies, Island Press, 2004) and others shows the negative effect of groundwater depletion on fish spawning, fresh-water supplies, and other unanticipated consequences. Additionally, the less water there is in the ground, the greater the rate at which surface water is absorbed into the ground. The result is less surface water which means that in order to obtain the water one must pump it instead of just diverting. This isn’t just inefficient; it also degrades the value of surface water rights. Furthermore, a depleted groundwater source can result in reduced groundwater quality. This is the result of water deeper under the surface being of lower quality, which can be the result of higher concentrations of mineral salts. Subsidence also presents salinity and the potentially disastrous possibility of an earthquake salinating drinking-water supplies, because parts of the delta are now below sea level.
California, with year-round growing, is the breadbasket of the United States. This is part of the reason that, as an agrarian democracy, California successfully garnered so much Colorado River water, and why Central Valley growers have laid claim to so much Bureau of Reclamation water without paying for it. Even though, agribusiness is much changed and changing with water transfers to highly populated areas, groundwater represents a potentially sustainable source of agricultural irrigation, as long as recharge is effectuated.
Finally, whereas reservoirs store water, aquifers store water without allowing it to evaporate. Reservoir evaporation is affected, obviously, by reservoir depth, weather and altitude, but aquifers represent an economizing method of water storage and should, therefore, be preserved and managed.
Before cobbling any more regulation, we must evaluate and then address the current disparity between the interests of the public and the groundwater users. For the public, there exist two best-case scenarios: 1) The use of groundwater becomes sustainable, i.e. aquifers are recharged as they are drawn from, or 2) depletion provides a benefit that has higher value than a full water table with the environmental benefits accompanying its presence. Even though continued groundwater pumping in the long term will spell their demise, the short term interests of the farmers to keep pumping unabatedly are such that Mark Watte, a farmer who relies on ground water for 75% of his irrigation, said of ground water regulation that farmers “would resist that to our dying day.” Again with the World War III!
California is the only arid western state not to regulate groundwater. A key aspect of determining what would be best for California is a review of the groundwater regulation of other western states. These states share aridity and culture with California more than elsewhere in the world. Water in these states is managed under the doctrine of “prior appropriation.” In this system people drawing on the wells are given priority based on the order in which they first drew groundwater – first in time, first in right. Although this is the guiding principal of all of groundwater regulation, the specific way in which it is administered is different in each state. The following are accounts of the regulatory systems for the states in the southwestern United States.
In Colorado the Groundwater Management Act of 1965 and the Water Rights Determination and Administration Act of 1969 established groundwater as tributaries to surface water, with few exceptions, and required that groundwater be regulated by the same prior appropriation system as surface water. Water drawn from tributary groundwater cannot deplete the surface streams by more than 1%. In non-tributary aquifers the water drawn is allocated based on a percentage of land owned above the aquifer. New wells in the state must have a permit, except for wells that pump fewer than 15 gallons a minute. Commissions are also established for determining the pumping levels of the various groundwater basins in the eastern plains. Pumping is strictly enforced.
In Arizona regulation didn’t come until later on. Although surface water was managed through appropriation, the Arizona Ground Water Management Code was passed in 1980. This code divided groundwater regulation into three different zones, each of which has its own regulation. The lowest level of management doesn’t require a permit to draw water. The two other areas are the Active Management Areas (AMA) and the Irrigation Non-expansion Areas (INA). INAs are places in which the current level of groundwater extraction is unsustainable and pumping for agriculture that didn’t begin five years before the designation of the area is prohibited. AMAs have a heavy reliance on groundwater to meet their water needs. There are three types of water rights in these areas. The water users who had the use of the area five years before the designation, and users such as irrigation districts, private water companies and municipal water providers can obtain permits. People drawing small amounts of water for non-irrigation purposes do not require a permit. Arizona’s INAs and AMAs have their boundaries defined by groundwater basins.
In Nevada prior appropriation is not a strict doctrine. Although senior users are generally given priority, certain uses of groundwater may be designated as preferred. Also domestic use of groundwater (water for one’s house) is exempt from permitting. Generally groundwater permitting is designed to limit consumption to correspond to the ability of the basin to recharge, however, in cases where there might be a supply of water to supplement consumption at a later date, permits allowing consumption above the recharge rate may be issued. However, they are easily revocable.
New Mexico permits are only required within designated “underground water basins” and those rights are subject to prior appropriation. However, wells under 2.375 inches in diameter do not require a permit even within the designated basins. Utah is also subject to prior appropriation; all wells deeper than 30 feet need a permit. The state is divided into “groundwater areas” and is administered separately by the different basins.
How applicable to California are scenarios from other states? Unfortunately, development of California and surface water regulation serves as a stark reminder of our government’s ineffective protection of “public” resources. California’s water acquisition and management have been impressive in the scale of economic activity that they brought to state, but the government completely failed in distributing water according to any egalitarian expectation. Moreover, California’s water acquisition and management have had grave environmental impacts. For example, water from the Central Valley Project was originally intended to support food cultivation at small family-owned farms, not to create vast profits for large scale farms. In another example, the City of San Diego consumes approximately 200 million gallons daily, only to dump over 170 million gallons of wastewater into the Pacific Ocean every day, through obtaining a waiver from the U.S. Clean Water Act. That these injustices occur in concert with surface water regulation under “The California Doctrine” does not instill confidence in California’s ability to regulate and enforce additional regulation over groundwater.
Due to the difficulty that water regulation in California has faced in the past and the current financial situation in the State, the establishment of a vast regulatory bureaucracy to keep constant tabs on individual well users’ water consumption is problematic.
In response to the groundwater situation there has been a recent push by state law makers to change the way in which groundwater is handled. It shows the lines along which political opinion has divided, with farmers being completely opposed to the idea of regulating groundwater (Farmer Watte’s comment: “We would resist that to our dying day.”) The opposition is rooted in the mistaken belief that the groundwater is their possession and that the government has no right to take their (good) property and the belief that the state can ride out any dry spell. Opposition to regulation amongst Republican law makers is based in fear that regulation would be far too expensive, which was the logic behind the vetoing of regulatory legislation by Gov. Schwarzenegger 2005, 2006 and 2007. Meanwhile, on the opposing side, the argument is that continuing to drill deeper in order to attain water is unsustainable and that regulation is essential to counter this. Although no regulatory action has been taken thus far, in February 2009 as part of an emergency drought declaration local governments were asked to provide information as to the status of their groundwater supplies. old
Other states too faced extreme contentiousness when they went about imposing groundwater regulation, and they imposed it anyway, which suggests that resistance can be overcome or simply rolled over, particularly with a thoughtful media campaign to sway public opinion. Groundwater regulation in the other southwestern states prevents overuse, first by dividing up regulation of groundwater by basin, second by enforcing the regulation, and third by not requiring small users to obtain permits. Preventing overuse is an obvious necessity.
Dividing up regulation by basin is important because leaving regulation up to traditional administrative units of California would not solve the problem of having multiple interests competing over a common resource. Mandating these units to regulate would put them in the position of having to administer against their immediate constituents’ interests. If they allowed well users in their areas to overdraft, the costs of those actions would be distributed to other areas. So regulatory agencies for all major water basins in California would be necessary.
These agencies would be responsible for ensuring that the existing law – for “reasonable and beneficial use” of water in that area is enforced. The fact that existing law demands this reasonable and beneficial use seems a springboard to adding layers of enforcement and monitoring. Permits would be the tool by which these administrative units governed, and meters might also be necessary as they are in northeastern Colorado, where my grandparents have a farm. The initial transition would in all likelihood be immensely painful, with farmers up in arms, only metaphorically, one hopes. Consumption levels need to be reduced and expecting the regulatory bodies of each basin to be able to determine how much to allow each well user should use would be unreasonable. As a result the amount which people spent on permits would have vary depending on how much water was intended to be drawn out. The price of the permits could be determined using a system similar to carbon credits. Where there are a set number of permits for a year (equaling the amount of water recharge that occurs annually) and then they would be bid upon. Although many users would be unable to get the water they want in this scenario, ultimately the people willing to pay the most for the water would probably end up purchasing it even if the permit system assigned water by some other method. By having the state being the one in effect selling the water the money would end up with the public. Additionally this would result in the shutdown of the wells of people who would not be willing to pay for permits. If many wells were to be kept in operation, each to extract a relatively small amount of water just to have that water ultimately moved somewhere else it would be atrociously inefficient.
Maybe needs some other ideas.
It will be an extremely bitter bill to swallow. Will it drive up the cost of food? Yes. Will it put some farmers, particularly small farmers out of business? Likely. Will the water districts that supply municipalities be standing by a slaver, waiting to purchase or otherwise acquire the water rights and/or develop the former agriculture land residential? That too is a real possibility. However, it is nowhere near as painful as the destruction of these resources would be. What differentiates California from the other western states is that its unregulated levels of consumption are so very far from acceptable, sustainable, and finally safe, considering drought, climate change, population rates and the probability of earthquake. All that this regulation would do would be to create a bust in water consumption that nature would eventually impose anyway. As a result allowing users of groundwater to continue at current levels would be entirely unacceptable.
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