The Shape of Groundwater Law: California's New Sustainability Act

Helen Ingram's contributions to understanding the challenges of equitable water management and to offering ways of improving it are unequaled. They have made a difference in policy, not only in scholarship. Helen and Joseph Sax—another extraordinary water scholar and dear friend, also of Helen's—are the inspiration for my trying to add a bit to the analysis of what we can do to increase the probability that California's Sustainable Groundwater Management Act and other law and policy options will meet the goals of fair and effective groundwater law and policy.

Building trust in one another and developing institutional rules that are well matched to the ecological systems being used are of central importance for solving social dilemmas.²

Our objective is to keep groundwater management at the local level and not at the State Water Resources Control Board, or in many cases by the guys in the black robes through the judicial process.³

Introduction

A. Water and Its Disappearance: A Scenario

Several families in the town of Dry, which relies heavily on groundwater for its needs, have been told that if the already historically long drought continues in their area, within months they will have no running water; land in their community will continue to sink, destroying existing infrastructure; wildlife that use degrading wetlands for habitat will disappear; and fish in the shrinking streams will not survive. Authorities further informed Dry residents that even if this drought mitigates in severity, the long-term prospect in the face of climate change is for periodic massive water shortfalls and saltwater intrusion into their drinking water and other supplies of water. Companies in and around Dry have been drawing groundwater in a business-as-usual manner and they have no intention to stop. These users claim historical rights to draft from the underground water sources, some of which are transboundary with a neighboring nation-state. Some say they are overliers; some claim prescriptive rights; others say they are appropriators; and a few even claim pueblo priority. Although they are feuding among themselves as to how much they should pull from the aquifers, they are steadfast in their commitment to maintain their uses until "nature fills in the wells or until the water is gone." Several of the users engage in activities that pollute the existing groundwater. Families in Dry have no other source of water.

The above scenario, a collage of circumstances not commonly found together, is nonetheless not fanciful. In the most recent drought in California impacts described were stunning, affecting everyone, rural and urban, agricultural and industrial, with costs calculated in the billions on the macro level and individual cases of parched communities and families needing to carry in bottled water to drink and bathe, making these costs graphic.

Groundwater Management

What Is Groundwater?

Although it seems natural to begin an article on groundwater with a definition of what it is, in the California case it is more than a descriptive introduction. Part of the reason why California has had limited groundwater management is because of deep-seated and fiercely argued and litigated differences on what is and what is not groundwater.⁴

Groundwater has been curiously and sometimes humorously misunderstood throughout history. Just over a hundred years ago it "was considered 'occult' "⁵ and its "existence, origin, movement, and course… secret…and concealed…or mysterious."⁶ While now scientifically well understood, that knowledge has not been disseminated broadly to the public or to policy makers. It's also true, however, that unlike a surface- water stream or lake, it is difficult for people to tell where a groundwater basin is and where it starts and ends without expensive investigations. Groundwater is water that is located over common basins, but not always common legal jurisdictions or property boundaries. It is water from rain and rivers that migrates through the ground and is stored in porous soils and rocks. Groundwater is found in vast quantities filling the spaces between grains of soil or rock; it slowly flows through aquifers; it connects with...