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California’s Groundwater Regulations: Opposing Groups Have Opportunity to Create History for the Right Reasons

Posted: May 6, 2015

by Diana Caruso

Executive Summary

Groundwater is essential to the overall well-being of millions of people across the United States. Much focus is given to the handling of surface water, while groundwater is less regulated. One state in particular--California--is struggling more than ever with a loss of groundwater. This loss comes as a result of several factors, one of which is a historically lengthy drought.

California's government--led by Governor Jerry Brown--has worked to establish a set of laws aimed at regulating and preserving California's groundwater. Controversial for many reasons, the new legislation is said to be especially damning to California's large population of farmers, ranchers, and agricultural landowners. Proponents view it as a necessary act of sustainability in an era of increased urgency. Both parties can agree that groundwater regulation is necessary, but the opponents of the legislation are concerned with the proposed methods and economic impacts to come. Through research of legal regulations, both historic and modern, this case study analyses California's most recent policy on groundwater management. Historic water rights and recent water regulation are essential to an overall understanding of the legality of what is currently taking place in California. The new Sustainable Groundwater Management legislation takes steps in the right direction for future groundwater management, but leaves much room for improvement to better suit the vital agricultural industry in California.

Background

California is currently suffering a historical three-year drought that is possibly the worst since the beginning of the state's record keeping in the past century. On January 14, 2014 California's governor proclaimed a State of Emergency because the state faced shortfalls in its driest year ever recorded. Figure 1 demonstrates the drastic decrease in groundwater from Spring 2013 to 2014. Some areas lost as much as 60 feet in the San Joaquin Valley, an agriculturally dependent region. This shortage of water supply poses serious risk to California on various levels. Primary concerns involve the availability of drinking water, irrigation water for agriculture, and vast ecosystems that rely upon surface water for survival (Brown, 2014).

In January 2014, the NOAA reported, "about 30 percent of California's urban and agricultural water supplies come from groundwater [annually]" (CDWR, 2014). Reliance on groundwater increases during droughts due to reduced availability of surface water. It is not surprising then that on September 16, 2014 Governor Jerry Brown signed a package of bills to regulate groundwater extraction for the first time in state history. While to many this may seems like an obvious step in the right direction for California water law, there is much concern from farmers, ranchers, and agricultural land owners who depend on high levels of groundwater to maintain their livelihood (Kuhne, 2014).

Alex Barnum, California Environmental Protection Agency Communications Director, noted that in these extremely dry conditions "nearly 60 percent of the state's water supply is dependent on groundwater" (Kuhne, 2014). This is bad news for farmers, who believe the new groundwater legislation could not only put the state of their business at risk now and indefinitely, but also decrease property values. The new groundwater legislation will create a framework for increased sustainable efforts, but its rushed passing leaves much to be desired.

Legal Framework Historical WaterRights

Water right law in the East and West differ, a phenomenon that is greatly attributed to the 1849 California Gold Rush. The "49ers" needed to build flumes and waterways to work transport timber and other products for successful mining operations. The water carried in these systems often had to be transported far from the original river or stream. "The self- governing, maverick miners applied the same 'finders-keepers' rule to water that they did to their mining claims. It belonged to the first miner to assert ownership" (SWRC, 2014). This sparked the birth of the appropriative right system in which multiple individuals or companies have rights to water from a source, with their rights existing in a hierarchy.

Unlike riparian rights holders, appropriative rights holders are not required to put water towards reasonable and beneficial use like irrigation, agricultural uses, livestock watering, etc. As of 1914, the hierarchy of priorities established by 49ers has governed appropriative rights. "In times of shortage the most recent ("junior") right holder must be the first to discontinue water use. Although pre- and post-1914 appropriative rights are similar, post-1914 rights are subject to a much greater degree of scrutiny and regulation by the Board" (SWRC, 2014). For groundwater specifically, the concept of overlaying rights was established. This means that anyone owning land may extract percolating groundwater located beneath his or her land without approval from the state. However, groundwater use is subject to greater regulation on a case-to-case basis within the particular water basin.

Recent Water Right Regulation

Due to the current drought, farmers seem to be pumping as much water as possible from wells, as it is their right. The water basins can run dry and once that happens it is very difficult for them to fill it with water again. The great amount of water extraction also contributes to degradation of the land to the point that it is crumbling and causing infrastructure damage in some areas. In order to control these heavy amounts of pumping, the California state government has recently passed groundwater-pumping regulations for the first time in history, on September 16th, 2014. These regulations consist of Senate Bill 1168, Assembly Bill 1739, and Senate Bill 1319; collectively known as the Sustainable Groundwater Management Act. "While the legislation puts most of the burden--and the power--in the hands of locals, it also establishes roles for two state agencies: the Department of Water Resources (DWR) and the State Water Resources Control Board (SWRCB)" (Nylen, 2014).

The California Farm Bureau Federation (CFBF) does not agree with the hastily decided Sustainable Groundwater Management Act. "CFBF strives to protect and improve the ability of farmers and ranchers engaged in production agriculture to provide a reliable supply of food and fiber through responsible stewardship of California's resources" (California Farm Bureau Federation, 2014). California farmers are already struggling to stay afloat due to the historical drought that they are currently enduring. The new legislation will most likely put farmers at higher risk of losing their crops and destroying their property values. The root of the problem, water scarcity, is in no way solved with this new legislation.

CFBF President, Paul Wenger, believes that the recent groundwater regulations will threaten California's farmers, ranchers, and landowners. He believes that "the Legislature took the 'ready, fire, aim' approach, rushing these bills through and creating a massive new regulatory program in the final days of the legislative session," rather than taking their time to create a more effective approach (CFBF, 2014). It is also important to note that there was no policy hearing, making the policy even more susceptible to flaws. Among the flaws that will most likely emerge in the near future, the one of greatest concerns to the CFBF is that the new regulation ignores the protection of property rights of overlaying landowners. Danny Merkley, director of water resources for CFBF believes that "there could be huge, long-term economic impacts on farms because of the potential to devalue land" (Gies, 2014).

Outside of the Farm Bureau, political figures like State Assembly Republican Leader-elect Kristin Olsen are speaking in opposition of the newly passed bills. In a recent interview, Olsen stated that his vulnerable Central valley region "is still suffering from high rates of poverty, record unemployment, and increasingly high costs of living - [and that we] simply cannot sustain another hit to our local economy" (McMillan, 2014). In addition to property value loss, agricultural lenders will be less likely to invest in farm operations, since they weigh water quantity and reliability heavily. Tod Kimmelshue, a senior lender with Northern California Farm Credit and past CFBF director, warns that "the impact of poorly designated groundwater management regulations could extend beyond affecting agricultural land values; there could be a ripple effect that moves through local economies from reduced property and business tax revenue and local jobs" (Campbell, 2014).

In addition to looming economic burdens, farm communities can expect growing friction among neighbors. Private property rights entail using land however the owner sees fit, as long as one does not infringe on the rights of other property owners. The problem with pumping groundwater is that the basin being pumped greatly exceeds the area on which someone's property lies. This means that whoever pumps the fastest and hardest could take all of the water that their surrounding neighbors also have the right to use. Additionally, in California it is unclear how much everyone is pumping, since pumping rates are not currently measured. With the new regulations the State Water Board has the right to monitor rates, but it is not definite that meters will still not be required by water pumpers. Although all parties agree that a sustainable groundwater management plan of some sort is necessary, opponents point out that rushing so-called "historical legislature" will not provide adequate solutions.

Supporters of Sustainable Groundwater Management Act

Supporters of the package of bills are proud of their efforts to regulate California's groundwater for the first time in history. A notable feature of the regulation is its focus on locally derived management plans. "Local agencies will now have the power to assess the conditions of their local water basins and take necessary steps to bring those basins in a state chronic long-term overdraft into balance," the governor said in his official signing message (Allshouse, 2014). Supporters like democratic state Senator Fran Pavley, who authored one of the bills, ensures that farmers were being thought of in every step of the process and that their input helped craft the bills (Palomino, 2014).

While there is great opposition from farmers and the like, Governor Brown believes that they will be protected under new regulations. Continuing the race of drilling deeper and harder will only result in a few winners and many losers, with winners being the farming elite with the most financial backing to out pump other farmers. If held off much longer, this regulation would not have had the opportunity to halt the already detrimental environmental impacts occurring. Governor Brown notes that "over drafting our groundwater leads to subsidence and contamination; consequences we cannot afford" (Allshouse, 2014). This can happen due to soil compression from over-pumping, which permanently decreases water holding

capacity. Figure 2 is a map of subsidence near Merced, CA, from 2007 to 2011. In just 4 years, vast areas of land sunk over 2 feet. It is important to note here that subsidence like this will only increase if groundwater extraction is not controlled. In defense to the legislation being called "hastily cobbled together" and "rushed through," supporters, like Democratic Assembly Member Das Williams, point out that this is an urgent issue, which is why it had to be done in such abrupt manner. Also, its quick timeline does not reflect the amount of time that this legislation has been considered.

Solution

The root of the problem is water scarcity. No matter how harsh groundwater extraction regulation the local governments sets, there will be no new creation of water. Farmers are in a very difficult situation because while they know that the sustainable use of groundwater is beneficial for both them and the rest of California's citizens, they are the only individuals at serious risk that could destroy the agricultural economy they built for so long. In order to have access to inexpensive water, local agencies should implement a recycled water market into their groundwater sustainability plans. This would include infrastructure costs of increased recycled water treatment plants and transport costs for the water. The California Environmental Protection Agency has already begun implementing a Recycled Water Policy, which materialized in 2009. The policy strives to increase use of recycled water and storm water, increase the amount of water conserved in urban and industrial uses, and substitute as much recycled water for potable water as possible (IWA, 2014). This link to agricultural use would only increase the scale of the recycled water project and place a focus on agricultural rather than consumer use.

This approach not only fulfills sustainable management procedures that California prides itself on, but also will be the economic boost that farmers need after the new groundwater regulations go into play. Recycled water is not incredibly cheap, but it could be subsidized for agricultural purposes and offered at market price to the many consumers interested in using it. Additionally, the current appropriated rights to water have a "use it or lose it" rule, which results in huge amounts of waste if farmers can not predict exact amounts of necessary water. The recycled water program could allow farmers to recycle and sell their leftover water at market price to consumers. By accepting an industry of conservation through recycling and a change of habits, Californians can take control of their water supply not only today, but for generations to come.

References

Allshouse, E. (2014, September). Governor Brown Signs Sustainable Groundwater Management Act. In Association of California Water Agencies . Retrieved October 30, 2014.

Brown, E. G. (2014, January 17). Governor Brown Declares Drought State of Emergency. In Office of Governor. Retrieved October 26, 2014.

California Farm Bureau Federation. Groundwater bills will cause harm, farm leader says (2014, August 29). In California Farm Bureau Federation. Retrieved October 31, 2014

California Farm Bureau Federation. (2014). About Farm Bureau. In California Farm Bureau Federation. Retrieved March 26, 2015.

California State Government. Senate Bill 1168-Groundwater Management: An act to amend Sections 10927, 10933, and 12924 of, to add Sections 113 and 10750.1 to, and to add Part 2.74 (commencing with Section 10720) to Division 6 of, the Water Code, relating to groundwater. California: Approved by Governor. September 16, 2014. Retrieved October 31, 2014.

Campbell, K. (2014, August 17). California Drought: Access to Water Proves Key Factor in Farmland Value. In Sierra Sun Times. Retrieved October 30, 2014.

CDWR. (2014, October 20). Water Year 2014 Ends as 3rd Driest in Precipitation. In California Department of Water Resources . Retrieved October 29, 2014.

Gies, E. (2014, September 3). As water crisis deepens, California finally passes groundwater regulation. In The Guardian. Retrieved October 31, 2014.

International Water Association. (2013). Water Recycling and Reuse: Potential, Safety, and Best Practices. Retrieved October 30, 2014.

Kuhne, M. (2014, October 9). Drought Spurs Historic Laws to Limit California Groundwater Extraction. In Accuweather. Retrieved October 29, 2014.

McMillan, B. (2014, September 2). Central Valley Representatives Against Passage of Groundwater Legislation. In Turlock City News . Retrieved October 31, 2014.

Nylen, N. (2014, October 8). California's New Groundwater Law: An Interactive Timeline. In Berkley Law. Retrieved October 28, 2014.

Palomino, J. (2014, August 25). Bills to regulate California groundwater use opposed by farmers. In Reuters. Retrieved October 29, 2014.

SWRC. (2014). The Water Rights Process. In State Water Resources Control Board. Retrieved October 31, 2014.