California carries the distinction of being the only western state without a system of state laws regulating groundwater use. Texas was the other holdout, but in response to drought conditions there, the Texas Legislature recently passed a law implementing statewide regulatory oversight by requiring well permits in designated areas and empowering conservation districts to manage groundwater use and recharge.
In and around the state Capitol, conversation about California’s laissez-faire approach to groundwater management has simmered for years, punctuated by occasional spurts of activity. In 2009, when the Legislature focused on a package of water bills and a water infrastructure bond, groups seeking a new state groundwater law jumped at the opportunity. As a result, one of the five water policy bills focused on groundwater, requiring the state to collect groundwater basin elevation data from local agencies in order to better understand which basins are impaired.
Today, with the drought crisis and reports of dramatic overdraft capturing widespread political and media attention, focus is again on California’s unique approach to groundwater.
In its “California Water Action Plan,” the Brown Administration outlined a clear vision:
“The administration will work with the Legislature to ensure that local and regional agencies have the incentives, tools, authority and guidance to develop and enforce local and regional management plans that protect groundwater elevations, quality, and surface water-groundwater interactions…When a basin is at risk of permanent damage, and local and regional entities have not made sufficient progress to correct the problem, the state should protect the basin and its users until an adequate local program is in place.”
Translation: Change is coming.
Advocates for a stronger state groundwater law argue that without knowing how much water is being extracted and having the power to regulate pumping, groundwater basins will continue to be depleted and incidences of land subsidence will occur more frequently, causing permanent loss of the basin and infrastructure damage on the surface. Projected reduction in precipitation due to climate change is often cited as a major reason to strengthen state regulation of groundwater. While this may be true, we must continuously confront advocates of statewide groundwater regulation with an inconvenient truth: Overdraft conditions are also the result of environmental regulations — supported by many of the same advocates — that have throttled back surface water deliveries to San Joaquin Valley farms. The cutbacks to the Central Valley Project and State Water Project have delivered a double hit to groundwater basins, depriving them of surface water applied for irrigation, which provides an important recharge to groundwater, and forcing farmers to rely far more heavily on groundwater.
In any case, momentum to enact new state groundwater laws has never been greater. As groups meet and legislative hearings commence, the outline of a new groundwater regulatory regime is beginning to take shape, and the good news — at least at this moment — is that there appears to be broad agreement that groundwater management should be the responsibility of local agencies, with the state’s role limited to providing technical assistance and stepping in with authority to act only when local agencies fail to meet specific milestones to manage groundwater effectively.
Some have suggested a streamlined basin adjudication model. Water basin adjudications are currently long, expensive and often contentious, yet most of those who have endured the process emerge with greater water supply reliability and certainty that their groundwater basin will be managed safely for the long term. A streamlined version of basin adjudication that uses an administrative process, rather than a judicial one, may have merit.
The danger in all of this is obvious: Under the pretext of the drought crisis, advocacy groups and legislators are pushing for rapid development and enactment of legislation to “address the problem.” This is almost certainly the worst possible time to rush legislation on a complex problem that has been decades in the making. There is something about being a legislator that inhibits deliberate policymaking before a crisis and inspires half-baked proposals when crisis comes.
Few would argue that California’s current approach to groundwater management is viable, both politically and practically, in the long term. Indeed, the momentum to pass legislation this year has been fueled in part by media reports quoting farmers who make no bones about the fact something has to change. The choices our state’s lawmakers make in reforming that approach can have enormous consequences for the future of farming in California.
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