Managing Groundwater in California The Challenge of Allocating and Protecting Groundwater in the San Joaquin Valley

Overview  Groundwater and the Environment  Groundwater Uses  Legal and Social History of GW in California  Present-day Problems of Quantity and Quantity  Present-day Management Situation in California

Things to Contemplate 1.What are the obstacles to the optimal and “sustainable” use of groundwater in California? 1. Institutionally? Scientifically? 2.What are the differences between surface water and groundwater in the environment and in law? 3.What are the responsibilities of federal, state, and local governance in the allocation and protection of groundwater? 4.Is fundamental change in California groundwater law required to avert a substantial foregoing of opportunity?

Groundwater in the Environment  Facts about Groundwater  Occurs in the pore space between geologic sediments, fractures, and soils.  Quality is often better than surface water— protected via the “filtration” effects of the subsurface  It is distributed in many areas of the U.S. with little access to surface water supplies. Provides valuable baseflow for rivers during dry periods.

Groundwater in the Hydrologic Cycle

Groundwater as a Portion of the Water Supply

Groundwater System

Uses of Groundwater  In California Domestic consumption of groundwater & surface water = MAF and MAF, respectively. Agricultural consumption of groundwater & surface water = 12.2 MAF and 19.5 MAF, respectively.

Quantity of Groundwater Consumed in California Counties

Complex Landscape of CA Groundwater

Groundwater Basins of the San Joaquin

Problem of Large, Arid Basins Such as the San Joaquin

Groundwater/Surface Water Connection

Legal History of Groundwater 1.Largely a state issue 2.Early 1800s: U.S. adopted English customary or common law, with it doctrines governing surface water and groundwater. Groundwater extraction technology limited. 3.~1900: Correlative Rights recognized. 4.~1920s: Irrigation acts spurn demand and new technology allows increased extraction of groundwater s-40s: Large portions of California’s Central Valley are converted from wetlands to agriculture s: Overdraft is king s-1960s: Surface water deliveries (CVP, SWP) s-Today: Courts largely used as a dispute resolution mechanism.

English Rule or Rule of Capture (1871)  California Supreme Court-Hanson v. McCue (1871).  Exception, “malicious intent to wantonly deprive”.  Acton v. Blundell (1843). Groundwater “falls within the principle which gives to the owner of the soil all that lies beneath its surface; that the land immediately below is his property, whether it is solid rock, or porous ground, or veinous earth, or part soil, part water.”

Correlative Rights Doctrine (1903)  Supreme Court of California: Katz v. Walkinshaw (1903)  Riparian doctrine to underground waters  Overlying owners have "equal and correlative rights" in the use of water for overlying lands and that use by a owner for overlying lands is preeminent to use for non-overlying lands.  “The field is open for exploitation to every man who covets the possessions of another or the water which sustains and preserves them, and he is at liberty to take that water if he has the means to do so, and no law will prevent or interfere with him, or preserve his victim from attack.”

Prescripted Rights Doctrine (1949)  Supreme Court of California: City of Pasadena v. City of Alhambra (1949)  In overdraft, parties obtain prescripted rights  Pumping history of the previous five years  Led to a “Race to the pumphouse”

Mutual Prescription Doctrine (1975)  California Supreme Court: Los Angles v. City of San Fernando (1975)  §1007 of the California Civil Code protected municipal water districts  Further, they found the prescriptive period begins only when actual notice of adverse extraction is given to the affected parties, not simply when the basin is in a state of overdraft.  Equitable apportionment via a physical solution

Current Problems  Quantity Overdraft Subsidence  Quality Soil and water salinization Pesticides and nutrients (agricultural) Trace element contamination

Actors in California Groundwater  California Department of Water Resources  State Water Resources Control Board  Water Districts and Agencies (157+ types)  Groundwater Users  Pollution Regulators (CalEPA, USEPA, Dept. of Health Services)  Land Use Regulators (Dept. of Pest. Reg., County Zoning)

Current Management Options 1.Court Adjudication 2.Groundwater Management Districts (special legislative act) 3.County ordinance 4.Water District Authority 5.AB 3030 (Groundwater “Management” Plan)

Water Districts in the San Joaquin

Water District Acts: An issue of Jurisdiction?  There are 157 different water district acts in California.  The authority and boundaries of each vary significantly.

GW Management Map

Current Management Problems  Discord between surface water and groundwater planning, e.g. salt in the San Joaquin.  NPS  Discord between quality and quantity management  Collective action problems  Goal setting  Planning (at the appropriate spatial and temporal scale)  Jurisdiction

Consider 3 Options 1.Concentrate authority to allocate groundwater within the SWRCB. 2.Utilize alternatives and existing tools 3.Combine jurisdictional issues under a district entity, with power over groundwater and related resources.

1. SWRCB Control  Issue permits to groundwater  Institute restrictions during shortages  Utilize pump taxes or other means to optimize use

2. Existing System Plus Alternatives  Groundwater banking “The impressive efforts put forth by Cadiz Inc. in conjunction with Metropolitan Water District of Southern California (MWD) in planning for storage of water for future dry years shows depth of both planning and foresight for the benefit of generations of Californians in the new millennium…I see the conservation of vital Colorado water supplies in the Cadiz aquifers as one of the most important concepts that the State of California can participate in for the welfare of future generations of our California families.” -- M.J. “Mac” Dube, Mayor Pro Tem, City of Twentynine Palms, July 10, 2000  Water transfers  Fallowing programs

3. Utilize the Districts  Modify district law to combine jurisdictions and authority.  Set planning or other requirements, goals

Questions to Consider  What are your management objectives?  What types of authority and jurisdiction do you need to meet them?  What sort of internal/external pressures enter in to each situation?  Who would likely benefit/suffer from each situation?  What costs (e.g. economic, env.) exist?

Conclusions: Managing Groundwater  Spatial and temporal scale, heterogeneity of the resource  Goal setting: Optimize what?  Planning process: How to achieve the goals?  Institutional side: Delegate authority, set common goals  User-side: How does it affect the users, third- parties?

The Future?  In the progress of the legislation of this State, respecting the use of water, the significant feature of the changes and additions from time to time has been the principle of centralized public control and regulation (The Farm Investment Company v. Carpenter et al., 1900).