All groundwater is local: California's new groundwater monitoring law.
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.
I. LEGISLATIVE BACKGROUND: A PATCHWORK OF SOUND MANAGEMENT AND TRAGEDY OF THE COMMONS
A. 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)
B. 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 Orange, in which water agencies and replenishment districts have adopted comprehensive groundwater management schemes. (28) Other counties that have not adopted ordinances include many in the Sierra Nevada, Bay Area, and North Coast regions, where surface water is relatively plentiful. (29)
Prior to the enactment of S.B.X.7 6, then, the question facing the legislature was essentially this: given the widespread success of local groundwater management in many regions of the state, what should be done about the handful of areas that face problems of overdraft but have so far refused to manage groundwater resources on their own?
II. LIKELY EFFECTS OF THE BILL: A SOUND BET THAT INFORMATION WILL SPUR ACTION
A. Enactment and Provisions of S.B.X.7 6
Recent years have witnessed a movement to impose statewide regulation of groundwater. But vociferous opposition from regions of the state in which groundwater use remains unregulated, most notably the San Joaquin Valley, have made such proposals dead on arrival in the legislature. (30) S.B.X.7 6 originated as a small step in the direction of statewide groundwater permitting: it envisioned centralized statewide monitoring of groundwater levels throughout the state, to at least provide basin-by-basin data on the rate of groundwater withdrawals. That approach was rejected in October 2009, (31) and failed in the Senate on November 3, garnering only nineteen of the twenty one votes needed for passage, with only one Republican, moderate Abel Maldonado of Santa Maria, voting in favor. (32) After a handful of changes were made-including, most notably, placing more authority in the hands of local governmental officials (33) and removing the state's authority to impose a charge on well owners to pay for the monitoring program (34)--the bill was approved by the Senate and Assembly and was signed into law by Governor Arnold Schwarzenegger on November 6. (35)
The groundwater monitoring program established by the bill places primary authority for monitoring groundwater levels with local governmental entities, (36) who may seek to be designated by DWR as the monitoring party for a particular groundwater basin or subbasin. (37) If multiple parties apply, DWR will determine, in consultation with the applicants, which party will be given the task. (38) Importantly, given the extensive groundwater regulation systems in place in some areas of the state, (39) DWR is required to defer to existing monitoring programs if they are effective. (40) Only if it determines that no local entity has agreed to perform groundwater monitoring is DWR authorized to perform the monitoring itself. (41) In that case, all local governmental entities that could have undertaken the monitoring function but declined would become ineligible to receive any water grant or loan awarded or administered by the state. (42) That is a very powerful incentive, given the variety of measures adopted by the state in recent years to provide local governments with water infrastructure funding. (43) If voters approve the water bond on the November 2012 statewide ballot, even more funding will be available. It thus seems almost unthinkable that there will be any region of the state in which local government will fail to take up the legislature's charge to conduct monitoring. Indeed, experience in the months since the enactment of S.B.X.7 6 indicates that even areas historically skeptical of groundwater management, such as Colusa County in the Sacramento Valley, are beginning to undertake monitoring out of fear of losing water funding. (44)
B. A Hostile Reception
Reaction to the legislation has been negative among both groundwater users and environmentalists. Some hard-line irrigators see the legislation as another step toward intrusive statewide permitting of groundwater withdrawals. (45) Environmentalists and their allies in the legislature argue that, because it relies heavily on local governments and does not impose any restrictions on pumping, the legislation does not go far enough. (46) The crux of the debate is a familiar one in California: can the state's current system of groundwater management, which relies on local government, be improved in a gradual, piecemeal fashion, or is comprehensive state oversight necessary? Recent experience provides good reason to believe that the approach chosen by the Legislature--to continue down the path of local groundwater management that the state has followed for the past thirty years--is a sound one.
C. The Benefits of the S.B.X.7 6 Approach
1. The Problems with Statewide Groundwater Management
Of course, one possibility--in theory if not in reality--would have been to start from scratch and construct a new statewide groundwater regulatory scheme. There are several reasons, even apart from questions of political feasibility, why this approach was, from the beginning, unwise.
First, it is highly questionable whether state agencies would have the political will to effectively regulate groundwater, even if they were more explicitly given the authority to do so. The State Water Resources Control Board (SWRCB), which manages surface water in California, already has substantial authority over groundwater, since much of it is hydrologically linked to surface water. (47) SWRCB has been so reluctant to actually use that power, however, that environmental groups finally initiated litigation to force the board to regulate groundwater in just one remote watershed: the Scott River Basin, in Siskiyou County near the Oregon border. (48) Even if the environmental groups prevail, the prospects are dim that SWRCB will use this authority anytime soon in areas of the state with powerful groundwater users, unless ordered to by the courts. It seems quite doubtful, then, that new legislation is needed to augment the SWRCB's power, given its reluctance to exercise the authority it already has.
Second, a statewide system of groundwater regulation would also be all but certain to preempt and invalidate the many successful and innovative local approaches to groundwater management across the state. (49) Statewide groundwater management in other states has proven less effective--more riddled with loopholes and poor enforcement--than has local groundwater management in California. (50) Such problems would likely be even more pronounced in California, a state geographically larger, less politically cohesive, and more hydrologically diverse than any other. Attempting to institute groundwater management at the state level would thus almost certainly pose more challenges in California than it does elsewhere. (51)
Third, it is by no means clear that a statewide system of groundwater regulation is desirable from a public accountability standpoint. Overdraft of groundwater in the San Joaquin Valley may be unwise, but has little direct impact on water supply in other areas of the state. Depending on the discount rate one applies, overdraft may be an economically efficient choice. (52) If, as seems to be the case, a majority of voters in that region favor overdraft despite the risks it poses to the future viability of agriculture there, it is not immediately apparent what interest voters elsewhere in the state have in dictating a different course of action. (53) This is especially true once S.B.X.7 6 takes effect and voters there have full and accurate information about groundwater levels in the region.
For all these reasons, a wiser course of action is to attempt to bring all regions of California within the local groundwater management system that has been erected, and has met with a good deal of success, over the past three decades in much of the state. As water economist David Zetland has put it, "I am less convinced today that state-imposed groundwater caps are the right way to go than I was a couple years back." (54)
2. In an Era of Groundwater Crisis, Better Information Will Highlight the Need for Local Action
It is true, as critics contend, that better information is not a panacea. Some areas of the state that have failed to prevent overdraft know and publicize in great detail the degree to which their groundwater resources are being depleted. (55) Yet there is reason to believe that situation is changing, primarily for one reason: a groundwater crisis--of the very sort that forced basins in Los Angeles and Orange Counties to go through adjudication and adopt local groundwater management in the mid-twentieth century--has arrived in the Central Valley. Groundwater levels are at record lows. (56) Already, many small farmers are finding that groundwater levels have dropped so much that their wells can no longer withdraw water; most lack the funds to drill further down, and are being forced to quit farming. (57) Overdraft has also significantly reduced the quality of water available, to such an extent that groundwater can no longer be used for growing many crops. (58) Even in the absence of new state legislation, this trend would have been likely to produce more aggressive controls on groundwater withdrawals. Local regulation of groundwater quality has dramatically expanded in the Central Valley in recent years, (59) and while political opposition to groundwater quantity regulation remains strong, increasing shortages mean that more and more users will find themselves without any groundwater in future years, creating a strong incentive for them to support stricter regulation of groundwater withdrawals. And without the bogeyman of heavy-handed state regulation to invoke, opponents of sensible local groundwater management will find themselves increasingly on the defensive.
The monitoring required by S.B.X.7 6 can be expected to speed up this process in several ways. Most obviously, in locations where little or no groundwater monitoring is taking place, the bill will produce data that will make clear how much overdraft is occurring. (60) In locations where groundwater monitoring is occurring, but in a haphazard, disorganized fashion, DWR oversight can ensure that data are standardized and comprehensible across each basin. (61) But just as important, the bill will generate more thorough and higher-resolution data, both in areas with no existing groundwater monitoring and in areas that do monitor groundwater. The bill provides a list of criteria the DWR is required to use in determining whether adequate monitoring is occurring, (62) and also permits DWR to demand "[a]ny other information determined to be relevant by the department." (63) It is critical that data are precise enough to permit landowners and citizens to know not just whether a basin as a whole is suffering from overdraft and quality problems, but whether their particular area is. This is because the most likely path from groundwater monitoring to a more comprehensive regulatory system involves either political organizing on the part of landowners suffering the most from overdraft, or--more likely--litigation. Political organizing will be easier, and its message more powerful, if pro-groundwater-regulation forces can point toward specific harms produced by overdraft.
The same is true of litigation. Court adjudication of groundwater basins is often the first step toward pumping restrictions. (64) That was the experience of basins in Southern California. (65) Precise data that inform landowners of the condition of groundwater underlying their property will both spur potential plaintiffs to bring more litigation and serve as an important source of evidence at trial. This is a significant consideration, since the cost of hiring hydrologists to generate evidence is often a key factor deterring unhappy groundwater users from bringing suit. (66) Even the credible threat of litigation is likely to be effective in convincing local governments to regulate groundwater. Much will depend upon how S.B.X.7 6 is implemented; DWR may need to contribute both funding and technical expertise to sparsely populated counties that lack the capacity to undertake monitoring on their own. (67) But there is no question that the bill has the potential to dramatically expand both the quantity and quality of groundwater data available to those pushing for an end to overdrafting.
What one thinks of S.B.X.7 6 likely depends upon one's broader assessment of the groundwater policy implemented in California over the past several decades. Those for whom the absence of a statewide system of regulating groundwater withdrawals renders California's approach fundamentally unacceptable will not find much in the new law to like. If anything, in their view, it may be a step away from a statewide approach, by once again relieving some of the pressure for a complete overhaul of the system. (68) But those who share William Blomquist's sunnier assessment of California's approach--that "[a] choice in favor of local self-governance ... may represent a preference for adaptability and innovation, rather than either a no-action groundwater management system or mere chaos" (69)--should commend the legislature for taking another step down the path toward responsive and effective local groundwater management. By demanding that all regions in California make decisions about groundwater management in full view of the hydrological and economic realities involved, the legislature has given a major boost to those pushing for sound groundwater policies in their local communities.
(1.) Bettina Boxall, Legislators Strike Major Water Deal, L.A. TIMES, Nov. 5, 2009, at 1; Mike Taugher, Delta Deal Awaits Signature, CONTRA COSTA TIMES, Nov. 5, 2009, at 1A (noting that the package is arguably the most significant water legislation in the state since the authorization of the State Water Project in 1960); Paul Rogers, Schwarzenegger Signs Water Bill, SAN JOSE MERCURY NEWS, Nov. 11, 2009, at 2B.
(2.) S.B.X.7 1, 2009-2010 7th Exec. Sess. (Cal. 2009), available at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/ sbx7_1_bill_20091112_chaptered.pdf.
(3.) S.B.X.7 7, 2009-2010 7th Exec. Sess (Cal. 2009), available at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/ sbx7_7_bill_20091110_chaptered.pdf.
(4.) S.B.X.7 8, 2009-2010 7th Exec. Sess. (Cal. 2009), available at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/ sbx7_8_bill_20091106_chaptered.pdf.
(5.) Patrick McGreevy, Water Bond Pushed to 2012, L.A. TIMES, Aug. 10, 2010, at 3.
(6.) S.B.X.7 2, 2009-2010 7th Exec. Sess. (Cal. 2009), available at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/ sbx7_2_bill_20091109_chaptered.pdf.
(7.) For a collection of reactions from lawmakers, see Round-up: Legislator Comments on Passage of Water Legislation, AQUAFORNIA, Nov. 4, 2009, http://aquafornia.com/archives/14757, and More Legislator Reaction to Passage of Water Legislation, AQUAFORNIA, Nov. 5, 2009, http://aquafornia.com/archives/14842.
(8.) Colin Sullivan, Monitoring Bill Threatens to Sink Calif. Legislature's Water Package, GREENWIRE, Nov. 3, 2009, http://www.nytimes.com/gwire/2009/11/03/ 03greenwire-monitoring-bill-threatens-to-sink-calif-legisl-12905.html.
(9.) S.B.X.7 6, 2009-2010 7th Exec. Sess. (Cal. 2009), available at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/ sbx7_6_bill_20091106_chaptered.pdf. The bill adds Part 2.11 ([section][section] 10920-10936) to Division 6 of the California Water Code, and rewrites [section] 12924. Id.
(10.) LEGISLATIVE ANALYST'S OFFICE, GROUNDWATER MANAGEMENT AND DRINKING WATER QUALITY ISSUES 2 (2008), available at http://blogs.edf.org/ waterfront/files/ 2009/10/LAO-Groundwater_Management-4-23-08.pdf.
(11.) CAL. DEP'T OF WATER RES., CALIFORNIA'S GROUNDWATER: BULLETIN 118, at 140 (2003) [hereinafter BULLETIN 118], available at http://www.water.ca.gov/ pubs/groundwater/bulletin_118/california's_groundwater_bulletin _118_-update_2003_/bulletin118_entire.pdf.
(12.) David A. Sandino, California's Groundwater Management Since the Governor's' Commission Review: The Consolidation of Local Control, 36 McGEORGE L. REV. 471, 475-76 (2005).
(13.) Katz v. Walkinshaw, 74 P. 766, 772 (Cal. 1903) (establishing the correlative rights doctrine, under which groundwater is allocated between competing overlying landowners in "a fair and just proportion").
(14.) See Ella Foley-Cannon, Institutional Arrangements for Conjunctive Water Management in California and Analysis of Legal Reform Alternatives, 14 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 1105, 1131 (2008).
(15.) BULLETIN 118, supra note 11, at 2. One million acre-feet, equivalent to about 326 billion gallons water, is enough water to supply the annual needs of up to two million households.
(16.) Press Release, Jet Propulsion Lab., NASA Data Reveal Major Groundwater Loss in California (Dec. 14, 2009), available at http://www.jpl.nasa.gov/news/ news.cfm?release=2009-194.
(17.) See, e.g., City of Los Angeles v. City of San Fernando, 537 P.2d 1250 (Cal. 1975); City of Pasadena v. City of Alhambra, 207 P.2d 17 (Cal. 1949); see also Eric L. Garner, Michelle Ouellette, & Richard L. Sharff, Jr., Institutional Reforms in California Groundwater Law, 25 PAC. L.J. 1021, 1025-27 (1994).
(18.) WILLIAM BLOMQUIST, DIVIDING THE WATERS: GOVERNING GROUNDWATER IN SOUTHERN CALIFORNIA 304 (1992).
(20.) Id. at 305-13.
(21.) Joseph L. Sax, We Don't Do Groundwater." A Morsel of California Legal History, 6 U. DENV. WATER L. REV. 269, 271 (2003).
(22.) GOVERNOR'S COMM'N TO REVIEW CALIFORNIA WATER RIGHTS LAW, FINAL REPORT 166 (1978), available at http://www.swrcb.ca.gov/ publications_forms/publications/general/ docs/1584b.pdf.
(23.) See, e.g., City of Barstow v. Mojave Water Agency, 5 P.3d 853, 868 (Cal. 2000) (refusing to use the "equitable apportionment" doctrine to divide groundwater in the Mojave River Basin); Wright v. Goleta Water Dist., 174 Cal. App. 3d 74, 86-88 (1985) (refusing to undertake a comprehensive adjudication of groundwater rights in a basin that would include rights of non-parties to the suit).
(24.) BULLETIN 118, supra note 11, at 33-34.
(25.) 1992 Cal. Stat. ch. 947 (codified at CAL. WATER CODE [section][section] 10750-10755 (West 2011)).
(26.) Baldwin v. County of Tehama, 31 Cal. App. 4th 166 (1994).
(27.) BULLETIN 118, supra note 11, at 36.
(28.) Id. at 37.
(30.) Sandino, supra note 12, at 484.
(31.) Bettina Boxall, State Leaders' Fail to Reach Water Accord, L.A. TIMES, Oct. 10, 2009, at 6.
(32.) Vote Information S.B.X.7 6, 2009-2010 7th Exec. Sess. (Cal. 2009), available at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/ sbx7_6_vote_20091103_1207AM_sen_floor.html.
(33.) S.B.X.7 6, 2009-2010 7th Exec. Sess. (Cal. 2009), as amended on Nov. 2, 2009, available at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001- 0050/sbx7_6_bill_20091102_amended_sen_v97.html.
(34.) S.B.X.7 6, 2009-2010 7th Exec. Sess. (Cal. 2009), as amended on Nov. 2, 2009, available at http://www.leginfo.ca.gov/pub/09-10/ bill/sen/sb_0001-0050/sbx7_6_bill_20091102_amended_sen_v96.html.
(35.) Complete Bill History, S.B.X.7 6, 2009-2010 7th Exec. Sess. (Cal. 2009), available at http://www.leginfo.ca.gov/pub/09-10/bill/sen/ sb_0001-0050/sbx7_6_bill_20091106_history.html.
(36.) Entities that are eligible to perform groundwater management include groundwater management agencies, water replenishment districts, other local agencies already managing groundwater, counties, and newly created voluntary cooperative groundwater monitoring associations. CAL. WATER CODE [section] 10927(a)-(f) (West 2010).
(37.) CAL. WATER CODE [section] 10928 (West 2010).
(38.) Id. [section] 10929(c).
(39.) See supra Part I.B; see also Lois Henry & Christine Bedell, How Does the Water Deal Affect Kern?, BAKERSFIELD CALIFORNIAN, Nov. 4, 2009, http://www.bakersfield.com/news/local/x411464426/How-does-the-water -deal-affect-Kern (expressing concern that the act could effectively penalize areas of the state, like Kern County, that have developed groundwater management schemes on their own).
(40.) CAL. WATER CODE [section] 1093 1(a) (West 2010).
(41.) Id. [section] 10933.5.
(42.) Id. [section] 10933.7.
(43.) Sandino, supra note 12, at 486-87.
(44.) Susan Meeker, Reluctant County Joins State Groundwater Program, COLUSA COUNTY SUN-HERALD, Dec. 9, 2010, http://www.colusa-sun-herald.com/ news/county-5796-program-groundwater.html.
(45.) See, e.g., Alex Breitler, Bureaucratic Scrutiny Raises Hackles, THE RECORD (Stockton, Cal.), Nov. 26, 2009, http://www.recordnet.com/apps/ pbcs.dll/article?AID-/20091126/A_NEWS/911260309.
(46.) See, e.g., Bettina Boxall, Legislature Passes Water-Saving Bill, L.A. TIMES, Nov. 4, 2009, at 9 ("'Many of us would like to see a bill like this go much further,' said Assemblyman Jared Huffman (D-San Rafael), conceding that it was a 'modest step.'").
(47.) Sax, supra note 21, at 304-15; see also Marion Rice Kirkwood, Appropriation of Percolating Water, 1 STAN. L. REV. 1, 9-10 n.25 (1948) (noting that courts have routinely brought groundwater within the state's permitting system for surface water appropriations). In addition, even for groundwater that is indisputably not hydrologically linked to surface water, SWRCB already has the ability to regulate groundwater quality, though it has never used that power. See Sandino, supra note 12, at 478. Because water quality and quantity are inexorably related, see, e.g., PUD No. 1 of Jefferson County v. Wash. Dep't of Ecology, 511 U.S. 700, 719 (1994), this functionally gives the state significant authority over groundwater management.
(48.) Joseph M. Carpenter, Lawsuit Alleges Government Mismanagement of Scott River Groundwater Resources, ENVTL. L. & POL'Y ALERTS, SOMACH SIMMONS & DUNN, July 20, 2010, available at http://www.somachlaw.com/alerts.php?id=83; see also Sandino, supra note 12, at 475 n.42 (noting historical reluctance of SWRCB to assert jurisdiction over groundwater).
(49.) See Kelley J. Hart, The Mojave Desert as Grounds for Change: Clarifying Property Rights in California's Groundwater to Make Extraction Sustainable Statewide, 14 HASTINGS W.-N.W.J. ENVTL. L. & POL'Y 1213, 1237 (2008).
(50.) Arizona law, for instance, requires a permit to withdraw groundwater in certain areas of the state. ARIZ. REV. STAT. ANN. [section][section] 45-411, 45-451 (2010). Yet the law provides exceptions so substantial--for activities such as mining, industrial use, and electricity generation, that the regulatory scheme has been woefully ineffective in reducing overdraft. See ARIZ. REV. STAT. ANN. [section][section] 45-514, 45-515, 45-517 (2010). Shaun McKinnon, Draining Arizona's Future, ARIZ. REPUBLIC, Aug. 2, 2009, at A1. Montana maintains a permit requirement similar to Arizona's, MONT. CODE ANN. [section] 85-2-508 (2010), but allows exceptions for small appropriations by individual residences. MONT. CODE ANN. [section] 85-2-306(3)(a) (2010); see also JOE COLMAN, MONT. LEG. SERVS. DIV., DRILLING DOWN: A PRIMER ON EXEMPT WELLS IN MONTANA AND THE WEST 1-4 (2010), available at https://leg.mt.gov/content/Committees/Interim/2009_2010/ Water_Policy/Meeting_Documen ts/January/exempt-wells-overview.pdf. Collectively, wells drilled under this exception threaten to undermine the entire groundwater permit system. Between 2000 and 2008, almost 30,000 exempt wells were drilled, while fewer than a dozen were drilled pursuant to permits. Matthew Brown, Montana Ranchers Seek to Curb Residential Wells, ASSOCIATED PRESS, Dec. 3, 2009, available at http://seattletimes.nwsource.com/ html/businesstechnology/ 2010410393_apusfarmscenewaterwoes.html.
(51.) Garner et al., supra note 17, at 1050.
(52.) See David Zetland, Statewide Groundwater Regulation?, AGUANOMICS, July 12, 2010, http://www.aguanomics.com/2010/07/statewide-groundwater -regulation.html ("If [San Joaquin Valley residents] prefer to live in a world where pumping is costly and mostly unrestricted, why should we say otherwise? ... Could it be that overdraft is slightly beneficial for the Valley?").
(53.) One might respond that depletion of groundwater in the San Joaquin Valley will eventually increase that region's demand for surface water resources currently used in other areas of the state. Though speculative, that may be true. For the foreseeable future, though, surface water imports to the San Joaquin Valley are limited in any event by federal pumping restrictions in the Sacramento-San Joaquin Delta under the Endangered Species Act. See, e.g., in re Delta Smelt Consolidated Cases, Nos. 1:09-cv-00407 OWW DLB, 1:09-cv-00480-OWW-GSA, 1:09-cv-00422-OWW-GSA, 1:09-cv-00631-OWW-DLB, 1:09-cv-00892-OWW-DLB, 2010 WL 5422597 (E.D. Cal. Dec. 14, 2010).
(54.) Zetland, supra note 52.
(55.) For instance, Merced County, in the San Joaquin Valley, does not have a groundwater management ordinance. BULLETIN 118, supra note 11, at 36-37. Yet there are a variety of official governmental documents that have spelled out clearly the problems with groundwater management in the county, including both its 1997 report developed pursuant to A.B. 3030, see MERCED AREA GROUNDWATER POOL INTERESTS, MERCED GROUNDWATER BASIN GROUNDWATER MANAGEMENT PLAN (1997), available at http://www.swrcb.ca.gov/ waterrights/water_issues/programs/applications/transfers tu notices/2007/l1395grndwater_plan.pdf, and the county government's General Plan for land use purposes, see COUNTY OF MERCED, MERCED COUNTY GENERAL PLAN UPDATE: QUALITATIVE COMPARISON OF WATER SUPPLY AND DEMANDS IN MERCED COUNTY 8-9 (2009), available at http://www.co.merced.ca.us/pdfs/gpu/documents_maps/Supply and_Demand_TM_drft_110 9.pdf.
(56.) E.g., Rick Elkins, Water Table at Lowest Level Ever, VALLEY VOICE (Visalia, Cal.), Feb. 4, 2009, http://www.valleyvoicenewspaper.com/vv/stories/2009/ vv_watertable_0204.htm.
(57.) Matt Jenkins, Breakdown. "The Cadillac of California Irrigation Districts" Has More Than a Tiny Fish to Blame for Its Troubles, HIGH COUNTRY NEWS, Jan. 11, 2010, http://www.hcn.org/issues/42.1/breakdown/article_view?b_start:int=4.
(58.) Id. (noting that groundwater in the San Joaquin Valley is often contaminated with salt and boron, which can produce only low-quality lettuce); Ron Miller, Water, Economy: Uncertainties Delay Farmers' Planting Plans, CAL. FARM BUREAU FED'N, Dec. 2, 2009, http://www.cfbf.com/agalert/AgAlertStory.cfm?ID=1438&ck=DB6EBD0566 994D14A1767 FI4EB6FBA81 (noting that heavy pumping in recent years has led to declining water quality).
(59.) Heather Hacking, New Water Quality Rules for Farmers May Include Groundwater Monitoring, OROVILLE MERCURY REGISTER, Dec. 13, 2009; Wes Sander, Central Valley Groundwater Strategy in the Works, CAPITAL PRESS, Sept. 4, 2009, http://www.capitalpress.com/california/ws-Groundwater-Strategy_090409.
(60.) See, e.g., David Sneed, Paso Robles Water Basin in Overdraft, SAN LUIS OBISPO TRIBUNE, Sept. 19, 2010, available at http://www.sanluisobispo.com/ 2010/09/18/1294326/ paso-robles-water-basin-in-overdraft.html.
(61.) Butte County, for instance, has sixteen different groundwater monitoring areas, with different water levels triggering alerts in different parts of the county, impeding groundwater management at the county level. Heather Hacking, Butte Groundwater Monitoring Program Being Polished to Account for Dips in Supply Levels, CHICO ENTERPRISE-RECORD, Nov. 12, 2009.
(62.) CAL. WATER CODE [section] 10933(b)(1)-(7) (West 2010).
(63.) Id. [section] 10933(b)(8).
(64.) Hart, supra note 49, at 1227 ("[T]he past sixty years of institutional experimentation in California demonstrate that adjudication is the necessary first step toward groundwater management.").
(65.) See, e.g., BLOMQUIST, supra note 18, at 135-36 (describing the failure of water users in the Central Basin, underlying much of the Los Angeles area, to agree on pumping reductions until litigation was brought).
(66.) See Garner et al., supra note 17, at 1044.
(67.) Geoff Johnson, Tehama County Supes React to Groundwater Bill, RED BLUFF DAILY NEWS, Nov. 4, 2009.
(68.) See Sax, supra note 21, at 271.
(69.) BLOMQUIST, supra note 18, at 317.
Josh Patashnik, B.A. 2007, Harvard University; J.D. Candidate 2011, Stanford Law School.
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|Publication:||Stanford Law & Policy Review|
|Date:||Jan 1, 2011|
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