Negotiating Water Rights in the American West
Digger - May 20, 2013
The title of this page is taken from the hackneyed quote frequently attributed to Mark Twain - "Whiskey is for drinking; water is for fighting over." There is no evidence that Mark Twain ever actually uttered those words, but in the southwestern U. S. they have a definite ring of truth. When it comes to groundwater (water that is below the land surface) in California, they are gospel because "fighting" is the default method of settling disputes over who has a right to pump how much of it.
California groundwater is an important and highly valuable, but nearly invisible, resource. Perhaps because of its lack of visibility it is simply taken for granted and its use unregulated. Existing mechanisms to monitor, regulate, and protect groundwater in the State are weak, uncoordinated, ineffective, or nonexistent. The State Legislature has repeatedly refused to regulate groundwater and local governments and agencies with nominal responsibilities for doing so are all too often uninterested, incompetent, or, like the State Legislature, dominated by special interests; usually all three. As a result this irreplaceable resource is being depleted and degraded at an alarming rate. The only effective dispute resolution mechanism when it comes to groundwater is the courts. In fact, such effective groundwater regulation as does exist in California today is a product of a series of court decisions beginning in the early 20th century.
A century ago the importance of California's groundwater was underappreciated. The California Water Commission Act of 1913 codified rights to surface water, i.e., rivers and streams, but did not address groundwater. In the 1920s, however, groundwater quickly became an important component of the state's water supply when the development of powerful deep-well turbine pumps and the increased availability of electricity to power them enabled a tremendous expansion of agriculture which used these high-volume pumps to extract large quantities of groundwater for irrigation. The significance of the State's groundwater resource has continued to increase over time (DWR Bul. 118 2003, 24). In 1947, the amount of groundwater used was estimated at 9 million to 10 million acre-feet (maf) (1 acre foot = 325,851 gallons). Fifty years later that amount had grown by more than 50% to an estimated 15 maf per year (DWR Bul. 118 2003, 32). While reliance on groundwater in California has increased dramatically during the last century, appreciation for and stewardship of it has not.
As late as 1975, the California Department of Water Resources still described groundwater as "California's hidden resource" and it remains so today. Because groundwater is invisible except at a spring, most of which long ago dried up, or a wellhead, most Californians give little thought to the value of the State's vast groundwater supply; a classic case of out of sight, out of mind. Nonetheless, it is unlikely that California could have achieved its present status as the largest food and agricultural economy in the nation and fifth largest overall economy in the world without its groundwater resources. California uses more groundwater than any other state and the estimated 14.5 maf of groundwater extracted in California in 1995 represented nearly 20 percent of all groundwater extracted in the in the United States (DWR Bul. 118 2003, 20).
Groundwater now provides about 30% of California's water supply in an average year, and as much as 60% or more of the supply in some regions of the state during dry years. Forty to fifty per cent of Californians rely on groundwater for part of their water supply and many small to moderate-sized towns and cities, including Borrego Springs, are totally dependent on groundwater for drinking water supplies (DWR Bul. 118 2003, 2).
Notwithstanding its importance to the state's economy and the well-being of its residents, groundwater use in California is not only essentially unregulated, but unmetered and unknown with any degree of certainty (DWR Bul. 118 2003, 2). The situation can be likened to a bank account with an unknown balance from which anyone can withdraw funds. No one knows how much money is being deposited into the account, how much is being withdrawn or by whom, and there is no agreement about who is entitled to how much money. Like money in the hypothetical bank account, California's "groundwater is a 'common pool' resource" (Cal. Groundwater Mgmt.s, 134) on which everyone can draw but which no one manages leading to what has been called the tragedy of the commons wherein unbridled self-interest inevitably results in the eventual destruction of a common pool resource (Cal. Groundwater Mgmt., 14). At some point those who rely on the increasingly scarce resource, the commoners, are faced with limiting its use to prevent its destruction or losing it altogether. But first it is necessary for the commoners to have a way of knowing what the state of the resource is. And therein lies the problem: California has never had a comprehensive statewide monitoring network for evaluating the long-term health of its important groundwater resource (DWR Bul. 118 2003, 28).
Most California groundwater is contained in the approximately 450 (DWR Bul. 118 2003, 106; Cal. Groundwater Mgmt., 6) known groundwater basins throughout the state. Simply described, a ground water basin is a body of rock or sediment with reasonably well-defined boundaries and a definable bottom that stores and yields significant quantities of groundwater to wells and springs (DWR Bul. 118 2003, 214, 216).
Groundwater basins occupy about 40 percent of the State's vast area and in the first half of the 20th century the cost of installing enough monitoring wells to accurately determine long-term changes in the condition of these widely distributed groundwater basins was deemed prohibitive. Consequently, state agencies were forced to rely on irrigation and domestic wells to measure water levels and check water quality if and where they could get permission from owners to do so. Using production wells to monitor long-term changes in groundwater basins is, however, fraught with problems, and by 1998 DWR determined that this jury-rigged monitoring network could no longer provide the data necessary to effectively manage groundwater. (DWR Bul. 118 2003, 28)
Yet despite, or possibly because of, the dearth of information about the state's groundwater resource, groundwater development continues apace. For the 14-year period from 1987-2000, 127,616 water wells were drilled or upgraded, an average of 9,115 annually. Of these 4 percent were for municipal and industrial uses, 14 percent for irrigation, and, despite the fact that individual domestic use makes up only a small fraction of total groundwater use in the State, 82 percent for individual domestic uses (DWR Bul. 118 2003,27).
Groundwater basins from which more water has been withdrawn than is recharged or replenished over a period of years causing groundwater levels to decline and never fully recover are said to be in an overdraft condition (DWR Bul. 118 2003, 29, 216). The last comprehensive assessment of overdraft in the State's groundwater basins was conducted about 35 years ago, but DWR estimated based on available data that the annual groundwater overdraft in California in 1995 was about 1.5 million acre-feet. (DWR Bul. 118 2003, 2) Other estimates of groundwater overdraft in California range as high as 2 maf annually, but all estimates, including DWR's, have a wide margin of error due to the paucity of reliable groundwater use data. (Enion, 6) Whatever the exact number is, it is obviously too high.
To further compound the problem of inadequate empirical data on the use and state of California's groundwater, despite its common usage, the definition of the term "overdraft" itself has been the subject of debate for many years. Groundwater in California is "a locally controlled resource" (DWR Bul. 118, 28), and decisions about whether a basin is in a condition of overdraft are the responsibility of local water management agencies (DWR Bul. 118 2003, 97) leading to de facto definitions of the term that vary widely. In 1978 the legislature directed DWR to develop a definition of "critical overdraft" and identify groundwater basins that fit the definition. DWR held workshops around the state to gather information from water managers and the public on what a definition should include and arrived at the following:
A basin is subject to critical conditions of overdraft when continuation of present water management practices would probably result in signifcant adverse overdraft-related environmental, social, or economic impacts. (DWR Bul. 118 2003, 98)
Unfortunately the Legislature left the definition of significant adverse impacts to local water managers and with that the definition of "critical overdraft" as well. Be that as it may, in 1980 DWR published a list of eleven critically overdrafted groundwater basins in California. The funding for California Department of Water Resources, Bulletin 118, Calfornia's Groundwater (2003), however, was not sufficient to allow DWR to re-evaluate the conditions of the 11 critically overdrafted basins identified previously nor was the agency tasked by the Legislature to do so. Funding and the time allowed to complete Bulletin 118 (2003) were also insufficient for DWR to evaluate additional basins with respect to conditions of critical overdraft (DWR Bul. 118 2003, 98), thereby betraying the importance the State Legislature actually attaches to this critical resource and leaving the present condition of the State's groundwater resource in limbo.
"Groundwater management" is defined as "planned and coordinated monitoring, operation, and administration of a groundwater basin with the goal of long-term sustainability of the resource" (DWR Bul. 118 2003, 216). At a minimum, successful groundwater management should maximize and maintain long-term reliability of the groundwater resource by preventing significant depletion of groundwater, i.e., overdraft, or degradation of groundwater quality over the long term (DWR Bul. 118 2003, 44).
Among all the western states, only Texas and California have no state laws requiring groundwater management (Green, 82, 232; Enion, 2). Instead, approximately 2,300 local water agencies have interests in California's groundwater resulting in inconsistent and often inadequate local management of this crucial resource. While a few local management schemes are innovative and effective, many local districts have been unsuccessful in protecting groundwater. The California Legislative Analyst's Office believes that state administration of groundwater rights would result in long-term cost savings by avoiding the cost of dealing with overdrafted basins and cleanup of degraded groundwater (Enion, 10, 22), but "[v]irtually every attempt to manage groundwater at the statewide level has met with substantial opposition. Consequently "[t]oday California has no statewide groundwater management plan" (Cal. Groundwater Mgmt., 166) even though overdrafting is threatening the availability of groundwater to meet current and future needs in many groundwater basins throughout the State (DWR Bul. 118 2003, 99). Moreover, steadily increasing demand on California's groundwater resource is accelerating the rate at which groundwater management issues become critical and require resolution by an intensive, integrated groundwater management approach that considers the full range of demand management and supply alternatives. (DWR Bul. 118 2003, 48-49) It is clear that the days of groundwater management as a cottage industry must end.
There are three basic methods available for managing groundwater resources in California: management by local agencies under authority granted to them by State statutes, local government groundwater ordinances, and court adjudications. But no law requires that any of these forms of management be applied in a basin.(DWR Bul. 118 2003, 33)
Local Agencies: More than 20 types of local agencies are authorized by statute to provide water for various beneficial uses and many of these also have statutory authority to manage groundwater within their jurisdictions. As well, 13 local agencies have specific authority to manage groundwater as a result of being "special act districts," i.e., agencies or districts created through special acts of the Legislature. (DWR Bul. 118 2003, 33-34)
California's 1992 Groundwater Management Act (AB 3030) provides a systematic procedure for local agencies overlying groundwater basins to develop a groundwater management plan. (DWR Bul. 118 2003, 35) But AB 3030 is permissive not prescriptive legislation and only provides "encouragement for local agencies to work cooperatively and voluntarily towards groundwater management" (Cal. Groundwater Mgmt., 167,169) through agreements between private and public parties. It came about because of "Pressure for groundwater management programs at both the state and local levels as a result of worsening overdraft and groundwater contamination problems. In response to mounting pressure for authorization of statewide groundwater management legislation, the legislature opted instead for voluntary groundwater management at the local level," (Cal. Groundwater Mgmt., 169) i.e., they punted.
Upon adoption of a plan, a local agency can obtain the authority to 'fix and collect fees and assessments for groundwater management,' but their authority to do so is contingent on a majority vote favoring the proposal in a local election. (DWR Bul. 118 2003, 35) While more than 200 agencies, including the Borrego Water District, have adopted an AB 3030 groundwater management plan, none is known to have exercised the authority to levy groundwater management fees, and not all agencies with AB 3030 groundwater management plans have implemented them. Since there are neither mandates to prepare groundwater management plans nor reporting requirements if and when plans are implemented, no comprehensive assessment of the effectiveness of local planning efforts is possible (DWR Bul. 118 2003, 44).
Local Government: Twenty-seven of California's 58 counties have adopted some sort of groundwater ordinance, but 22 of the 27 counties adopted ordinances that regulate export of groundwater out of the county and in all but three of these that appears to be the sole purpose of the ordinance. Moreover, the authority of counties to regulate groundwater has been challenged and today the precise nature and extent of the police power of cities and counties to regulate groundwater is uncertain. (DWR Bul. 118 2003, 36) Although San Diego county's 1991 Groundwater Ordinance goes beyond merely regulating export of groundwater out of the county and provides for mapping groundwater impacted basins and requires projects within impacted basins to conduct groundwater investigations(DWR Bul. 118 2003, 39), it falls well short of the minimum standard for successful groundwater management.
Adjudication: The third general form of groundwater management in California is court adjudication. In some California groundwater basins, as the demand for groundwater exceeded supply, the lack of effective regulation by the State, local agencies, or local governments caused "uncertainty over the existence, extent and priority of groundwater rights held by each user" (Cal. Groundwater Mgmt., 134-35). This uncertainty often caused landowners and other parties to turn to the courts to determine how much groundwater could rightfully be extracted by each user. The courts studied available data to determine the sustainable amount of water that could be withdrawn from the basin each year, and distributed a proportionate share of the latter among the parties; a process called adjudicating the basin or simply adjudication. (DWR Bul. 118 2003, 40, 99)
More specifically, an adjudication is "the product of a lawsuit among basin pumpers to judicially determine the nature and quantity of each producer's share of the basin's safe yield," where "safe yield" is the maximum amount of water that can be withdrawn annually from a groundwater basin without eventually depleting the supply or causing other adverse effect (DWR Bul. 118 2003, 99, 219). Those claiming rights to groundwater in a basin that has been in a state of overdraft for a period of at least five consecutive years may seek to stop the overdraft, preserve the water source, and ensure themselves a fair share of the available water, i.e., safe yield, by asking a court to adjudicate the basin. In California, safe yield has commonly been determined in groundwater basin adjudications and much of California's groundwater law has, in fact, "been developed in the context of groundwater basin adjudications through the courts [because] attempts to create a comprehensive scheme for groundwater allocation have been limited and have met with little success." (Cal. Groundwater Mgmt., 134)
Thus, for all practical purposes, California currently has an ineffective mix of ad-hoc voluntary local agency regulation and court adjudication of groundwater. Though State regulation of groundwater has been considered several times since the Water Commission Act of 1913 was passed, the California Legislature has repeatedly held that groundwater management should remain a local responsibility. (DWR Bul. 118 2003, 32) "As a result, most of the body of law governing groundwater use in California today has evolved through a series of court decisions beginning in the early 20th century" (DWR Bul. 118 2003,225) and, as Jonathan Zasloff who teaches Land Use and Environmental Law at the UCLA School of Law points out "California's best-managed groundwater basins are in Los Angeles and Orange Counties, and guess what? They are the adjudicated ones"(Zasloff).
"The intense technical focus on the groundwater supply and restrictions on groundwater extraction for all parties make adjudications one of the strongest forms of groundwater management in California" (DWR Bul. 118 2003, 40). The court judgment usually defines the basin boundaries, limits the amount of groundwater that can be extracted by all parties based on a court-determined safe yield of the basin, and appoints a Watermaster to oversee the court judgment for each adjudicated groundwater basin. (ibid.) "Watermasters can be court-appointed management boards, the State Department of Water Resources, or an individual" (Green, 83). The functions assigned to a Watermaster are many. Among other things, they may include: managing and controlling withdrawal of water from the basin; determining the safe yield for each year and and allocating a share to each pumper; coordinating local efforts to preserve or restore the quality of groundwater in the basin; collecting data about production and water quality from producers; preparing an annual report of Watermaster activities and conditions in the basin, etc. (Green, 84). There are 24 court adjudicated groundwater basins in California, mostly in Southern California, where adjudications have been successful in maintaining the groundwater basin conditions, often by restricting pumping for all basin users (DWR Bul. 118 2003, 44).
One argument often raised against adjudicating a groundwater basin alleges that adjudications are costly, time-consuming, and difficult to litigate, all of which might be true. But the question is always: compared to what? If, instead of making excuses, Californians had started adjudicating groundwater basins more than thirty years ago, we might be finished by now. As Zasloff points out:"Early air quality efforts in California were hopelessly inadequate, but had they not started when they did, we might not have the Clean Air Act now." (Zasloff)
Another counter-argument is addressed by Robert Glennon, Professor of Law and Public Policy at the University of Arzonia, in his book Unquenchable:
Property-rights advocates often argue that property owners have an inherent right to drill wells on their property. Restrictions on this right, it is claimed, would violate the taking clause of the U. S. Constitution and require government compensation. But groundwater is not a private resource owned by the overlying land owner. It's a public resource owned by the state. Citizens can use it, but use rights profoundly differ from ownership rights. Moreover, what these property-rights advocates endorse is actually the antithesis of property rights: it's a circular firing squad. When it comes to unconstrained groundwater use, your 'right' is simply to pump water until your well dries up because a neighbor, a commercial farming operation or municipality, has caused the water table to plummet. The legal rules give you no right to exclude new pumpers. That's not much of a right (Glennon, 128-29).
Glennon's argument that groundwater is "a public resource owned by the state" rests on the Public Trust Doctrine, a legal principal codified in the sixth century by the Roman emperor Justinian that requires common resources such as water be held in trust by the state for the use and benefit of the general public rather than owned and controlled by private interests. It was incorporated into the Magna Carta in medieval England and adopted without argument as common law in new colonies created in North and Central America. In North America a version of it was written into the constitutions of several states as well (Walljasper, 72, 69; Cal. Groundwater Mgmt., 129).
The Public Trust Doctrine was upheld in U. S. Supreme Court cases in the nineteenth century, but in the early twentieth century the courts became more tolerant of states handing over public property to private, usually corporate, interests. That tendency has had unfortunate consequences because, when a particular common resource is perceived to have commercial value, someone will try to grab it. Humans have been ravaging nature since long before Adam Smith, capitalisms most fervent advocate, came along, but modern capitalism has exponentially increased their ability to do so and the temptation to privatize almost everything now threatens public resources on all fronts. (Walljasper, 56-59, 69).
Over the years the Public Trust Doctrine has been used primarily to protect the public interest in one particular vital resource: water. (Walljasper, 160). In California the public trust doctrine applies to all surface water rights but not to groundwater. So long as the California Legislature remains paralyzed by the clout of agri-business in the state and the courts are unwilling to invoke the public trust doctrine with respect to groundwater there remains only one feasible remedy for overdrafting: adjudicating individual groundwater basins(Zasloff).
One advantage of adjudication as method of regulating of groundwater use is precisely that it avoids the agri-business dominated California Legislature where any effort to curtail agriculture's right to pump like there's no tomorrow would be still-born. Another is that it demonstrates to the Legislature in no uncertain terms that the time for inaction is over and that they can deal with depletion of the state's groundwater now or deal with it later, but deal with it they must (Zasloff).
The single greatest advantage to adjudication is that it is dispositive. That is, it brings to an end a syndrome that plagues any attempt to deal with water shortages described by William debuys in his book The Great Aridness:
people haggle to exhaustion over the need to take action. Then they haggle over inadequate and largely symbolic reductions. Inaction becomes their main achievement. The problem of overallocation has been known, ignored, and passed on from generation to generation. Balancing the water budget will be left to the next generation. They will face a still graver situation with fewer alternatives and less of what policy makers call 'decision space' (deBuys, 160-161).
The outcome of adjudication, on the other hand, is by definition an enforceable decision that ends the haggling and the overdraft. In California it long has been and still remains the only assured method of achieving that desireable and necessary end.
California has neglected its critical groundwater resources for more than a century. The California Legislature has abdicated its responsibility for groundwater management and foisted it off on impotent and often incompetent local governments and agencies, most of which have shown neither the inclination nor the ability to discharge it. Their failure has resulted in the courts writing and enforcing virtually all of the laws regulating groundwater use in the State for the last century. Unless and until something changes, adjudication of individual groundwater basins will remain the default method of regulating groundwater use in California and the only real option for protecting this endangered resource. California's continuing overdraft of its groundwater basins has been described as "stealing water from the future"(Enion, 6). For many areas of the state, including the Borrego Valley, it is literally stealing the future itself.
California Department of Water Resources. California's Groundwater, Bulletin 118, 2003.
deBuys, William. A GREAT ARIDNESS: Climate Change and the Future of the American Southwest. New York: Oxford University Press, 2011.
Enion, M. Rhead. "Under Water: Monitoring and Regulating Groundwater in California," Anthony Pritzker Environmental Law and Policy Briefs, POLICY BRIEF NO. 1, Emmett Center on Climate Change and the Environment, UCLA Law School, July 2011. (accessed May 6, 2013).
Glennon, Robert Jerome. Unquenchable: America's water crisis and what to do about it, Washington D. C.: Island Press, 2009.
Green, Dorothy. Managing Water: Avoiding Crisis In California, Berkeley and Los Angeles: University of California Press, 2007.
Groundwater Resources Association of California. California Groundwater Management, 2nd edition, Sacramento: Groundwater Resources Association of California, 2005.
Walljasper, Jay. All That We Share: A field guide to the commons, The New Press, London, 2010.
Zasloff, Jonathan. "California's Groundwater Crisis: Time to Adjudicate," Legal Planet, UC Berkeley School of Law and UCLA School of Law, August 6, 2012. (accessed May 6, 2013)
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