On September 16, 2014, California Governor Jerry Brown signed into law a trio of bills to establish a statewide regulatory scheme for use of groundwater: Assembly Bill 1739 and Senate Bills 1168 and 1319. California had previously been the only Western state to leave “reasonable” use of groundwater to the tender mercies of individual pumpers until such time as the aquifer is adjudicated, a process that takes decades to complete.
California historically had asserted regulatory authority only over surface streams and defined underground channels. But the most prevalent, and unregulated use, was of percolating groundwater. Overlying landowners were deemed to have “correlative” rights to the use of groundwater under their lands; that is, rights proportionate to the amount of owned land.
This laissez faire approach has led to widespread overdrafting of groundwater resources, subsidence, and ruined groundwater quality. Further, as stream flows decline—whether because of drought or climate change—more users turn to groundwater pumping, lowering the water table and driving up the cost of energy to lift the water.
All the other Western states exerted authority over groundwater in the previous century. For example, Oregon’s groundwater appropriation law was enacted in 1955. California finally joined the 20th Century with enactment of these bills as a response to unprecedented drought conditions and the fear that climate change will make matters worse.
In a nod to intense water politics, the bills take a local planning and management approach. Other states direct their water agencies to establish basin plans to manage their groundwater resources. In that sense, California has shown leadership in adopting a more decentralized approach to a water-scarce 21st Century. Under the new legislation, local entities are to develop management plans for their groundwater basin for state review. The state would intervene only if it deems the management plans inadequate or not enforced. This local approach has not prevented certain water users from denouncing the bills as a state power grab.
My first job as a lawyer was as staff counsel to the California State Water Resources Control Board. In response to what was then the worst drought on record, Jerry Brown, in his first iteration as Governor, convened a blue ribbon commission to review California water rights law. The group was staffed by U. C. Davis law professor Hap Dunning and a team of young water lawyers, including myself. We reviewed every aspect of California water law in a series of white papers, and made several sweeping and not so sweeping recommendations for reform.
None of the recommendations passed out of legislative committees. I suspect the current legislation would not have passed either but for the historic and severe drought conditions now facing the state. California will need to do whatever it can to stretch its limited and declining water resources to support its powerful agricultural economy and growing cities. Let’s hope that the new groundwater legislation will be a solution for this century.