Senate Committee on Natural Resources & Water oversight hearing on groundwater, part 1: Professor Richard Frank on California’s groundwater laws

On March 18, the Senate Committee on Natural Resources and Water held an informational oversight hearing on groundwater.  On the agenda, Professor Richard Frank will discuss the laws governing groundwater; Andrew Fahlund with the California Water Foundation will discuss the state’s approach to groundwater management; next water managers from Sonoma County, the Central Valley, and Ventura County will discuss their successes and challenges of managing groundwater basins, and lastly Felicia Marcus from the State Water Board and Gary Bardini from the Department of Water Resources will discuss how the administration is looking at groundwater.  This is the first of four-part coverage of the hearing.

At the start of the hearing, Committee Chair Senator Fran Pavley gave some opening remarks.  “The topic of groundwater and groundwater management could not be more timely,” she began, noting that 35% of water supply in average years is about 35% and substantially more in dry years.

Pavley 1Senator Pavley recalled how the legislation in 2009 contained not legislation establishing the coequal goals and the water bond, but a policy bill on groundwater management.  She said that they didn’t get all they wanted on the groundwater management; it was extremely controversial, and what survived was just for people to start measuring the elevation of their groundwater basins so the state could start to get a handle on overdraft and other issues relating to groundwater management.  “Is that enough? Can we go further?  This is the subject of conversation for this particular hearing,” she said.

Because of the drought and other circumstances, we’re faced with serious problems relating to groundwater,” she said, citing nitrate contamination, overdrafted groundwater basins, subsidence, and saltwater intrusion as consequences of not doing a good job of managing our groundwater basins.

If you came from outer space and you looked at our system of water rights, including groundwater, the way we manage it in the western US, I think you would be confused and horrified about how an important resource could be so in poorly managed and therefore poorly protected,” said Senator Wolk.  “In order to protect the resource which is so important, especially in times of drought, you have to know how it works, how groundwater moves, how much of it there is, how it recharges, and that information has to be available so that we can protect what is a very important part of our water supply.”

Professor Richard Frank, Environmental practice and director of UC Davis Environmental Law and Policy Center

Professor Richard Frank began by saying that he has submitted a detailed written explanation to Committee staff, so in his presentation today, he would summarize the key points.

Frank 2California groundwater is fundamentally different in two ways, he said.  “California groundwater and California groundwater law is different from that that currently exists in every other western state,” he said, noting that Texas used to share the same distinction but in the first decade of this century, the Texas legislature enacted a series of laws culminating in 2011.  “So California is now the only western state that lacks such a system,” he said.

Second, California’s legal standards and in the legal system’s relatively laissez-faire approach to its groundwater resources stands in rather stark contrast to the state’s relatively comprehensive system of regulation of its surface water resources, the latter have been, relatively speaking, comprehensively regulated through an administrative permit system administered by the State Water Resources Control Board and its predecessor for about a century,” he said.

Professor Frank explained that under California water law, there are three distinct categories of water:

  1.  Surface water – derived from surface lakes, rivers and waterways,
  2. “Subterranean streams flowing through known and definite channels,”
  3. Other groundwater resources, generally referred to as percolating groundwater.

The assumption is that under California water law, underground water resources are percolating groundwater and the burden is on folks to demonstrate that it is part of a subterranean stream,” he noted.

It’s generally conceded that that categorization, which is a cornerstone of California water law, bears little if any relationship to geological realities,” said Professor Frank.  “To the contrary, the legal distinction between subterranean streams and percolating groundwater is, according to the late Professor Joe Sax, “fundamentally at odds with science’s understandings of water’s movement” and in point of fact, hydrologists and geologists tell us that the system – surface and underground waters – are really part of a single integrated water system.”

Nevertheless, the three distinctions remain of critical importance to California’s water rights system and that’s because California has long administered a detailed system of permitting and regulation of diversions from both surface waters and related subterranean streams,” said Professor Frank.  “Percolating groundwater, by contrast, is not subject to a statewide permitting system and indeed, California water code section 1221 expressly precludes California regulators from creating such a program.  Accordingly, most property owners of land overlying a groundwater basin can have the authority to simply drill and pump groundwater without any state permission, and so too do those who seek to create and pump from groundwater wells and move that groundwater, once pumped, off the overlying parcel of land.”

That’s not to say that state regulators lack all authority to control or limit groundwater pumping,” said Professor Frank.  “There are at least two potential sources of authority that state regulators, most prominently the Water Board, do have.  The first that is provided under the California constitution, specifically Article 10 Section 2, which prohibits the waste, unreasonable use, unreasonable method of use, and unreasonable method of diversion of California water, and while groundwater is not specifically mentioned in that constitutional provision, it’s generally conceded that all waters of the state are subject to that overarching restriction.  So as a result, the State Water Board, acting through the California attorney general, has the authority to institute litigation to control or halt groundwater use that constitutes waste, unreasonable use, method of use, or unreasonable method of diversion, relying on the constitutional provision.  And in as much as the State Water Board has concurrent jurisdiction to administer California’s water rights system, along with the courts, the Board has similar constitutional and statutory authority to initiate administrative proceedings to address perceived violations of Article 10, Section 2, relating to groundwater and groundwater extraction.”

Groundwater flow WikimediaThe second principle under which the state can control over percolating groundwater resources is California’s public trust doctrine, and under that long-standing principle of natural resource law, certain natural resources are held in a special capacity by the state for the long term benefit of its current and future residents,” he said.  “That doctrine also provides that the state trustees of those resources, which for water is primarily the State Water Board, have an affirmative and continuing responsibility to oversee and manage those resources for long-term protection and sustainability,” he said, noting that it was the landmark Mono Lake decision in which the Supreme Court expressly applied the public trust doctrine to California’s water resources and water rights system.  “In that case, the Supreme Court indicated that the water board does indeed have a ‘continuing duty’ in the words of the court to evaluate existing water rights and to adjust them when circumstances warrant.

He said that most of the court decisions involving the public trust doctrine and water have come up in the context of surface water, but he pointed out that also in the 2009 water legislation package, there was a provision that amended the water code to indicate that the public trust doctrine shall be the foundation of state water management policy along with article 10, section 2.

There is some dispute and indeed some litigation over the applicability or non-applicability of the public trust doctrine to groundwater resources; there’s current litigation pending in Sacramento Superior Court, which in the interest of full disclosure, I’m involved in,” he said.  “More importantly, the State Water Board is a party to that litigation which involves the applicability of percolating groundwater which has a demonstrated hydrological connection to surface waters, and in that litigation the Water Board has taken the position that the public trust does apply.  I think that’s the accurate and correct assumption.”

That said, the authority conferred under both Article 10, Section 2 and the public trust doctrine to address groundwater resources and potential problems concerning groundwater is really more of a theory than utilized in practice,” he said.  “The board has rarely asserted that authority in the past, at least in the absence of explicit legislative or judicial direction that it do so.  And the board and various sources have attributed that lack of activity to a lack of necessary staffing and resources.  As the committee may know, the Governor has actually asked for an augmentation of the budget of the water board at $1.9 million for the upcoming fiscal year to address that perceived deficiency.”

There is currently a lack of express state authority to monitor and require the monitoring and reporting of groundwater extractions by individual pumpers, he said.  “While some local jurisdictions require that under local ordinances, neither the State Water Board nor any other state agency has express statutory authority to require that information to be reported by groundwater users or that those data be maintained on a statewide basis,” he said, noting that the effort in 2009 that Senator Pavley mentioned was modest.

Another lesser known fact is that back in the 1950s, the California legislature adopted the Recordation Act, which required groundwater pumpers in the Southern California counties of Riverside, San Bernardino, Los Angeles and Ventura to file annual notices of extraction and diversion of water with the State Water Resources Control Board, he said.  “Among the information that’s required to be reported is the location of groundwater wells and the amount of water pumped from each of them.  Over the years, there have been several efforts in the legislature to expand the so-called Recordation Act requirements beyond the four enumerated counties but that has not been successful so far,” he said.

While most of the testimony I’ve provided is intentionally factual, I would editorialize slightly to say that any contemplated system of more aggressive regulation or management of groundwater at the state level really cannot be successful until and unless there is some effort to require the compilation of data with respect to groundwater pumping practices,” he said.

In the absence of a statewide system of groundwater management, data collection or permitting, the legislature and others have basically left management and regulation of groundwater to local and regional control, and this has resulted in patchwork of local ordinances, regulations and management plans,” he said.  “A number of local governments and special districts in California have in fact adopted ordinances and management plans relating to groundwater resources within the respective jurisdictions,” noting that an important decision 20 years ago expressly upheld the authority of local governments under their delegated police power to adopt such measures.

Frank 1A majority of California’s 58 counties have adopted at least some sort of local groundwater ordinance, and some of those measures, particular several of those enacted in Southern California, have considerable substance,” he said.  “A number of those are the product of groundwater adjudications and others have been facilitated by the groundwater reporting requirements in the four Recordation Act counties.  By contrast, most of the groundwater ordinances enacted and currently in effect in Central and Northern California are far narrower in scope and for the most part, the majority of them focus exclusively on the potential export of groundwater extracted within a particular county to other regions of the state via water transfers.  Those ordinances seek to either limit or prohibit outright the movement  of those groundwater resources out of the County in part to implement area of origin rights claimed to be afforded under a variety of state statutes.”

“In 1992, the legislature enacted AB 3030 which affirmatively authorizes but does not require local water management agencies to adopt groundwater management plans,” said Professor Frank.  “Under that legislation, groundwater management plans can include provisions relating to salt water intrusion control, regulation of migration of contaminated groundwater, mitigation of conditions of groundwater overdraft, and replenishment of groundwater enacted by water producers.  However, that legislation does not permit local agencies to make binding determinations of the water rights claimed by any person or entity, nor does it authorize local agencies, in most circumstances, to limit or suspend groundwater extractions.”

Most of California’s current groundwater law has in fact been developed by the court system rather than by the legislature or regulators,” he said, explaining that over the years, the courts have ruled that rights to use groundwater into three legal categories: overlying rights, appropriative rights, and prescriptive rights.

An overlying right is associated with land ownership of the parcel of land and the use of the water underlying the water on that land from which the water was pumped,” he said.  “An appropriative groundwater right by contrast is one that takes the water off the land for use elsewhere, such as by a municipal water agency to serve general needs.”

Professor Frank explained that generally an owner of land overlying a groundwater basin has a right to drill one or more wells and pump water for that basin for use on his or her land and that use is subject to California’s reasonable use requirement. “That in turn has given rise to what the courts refer to as the doctrine of relative groundwater rights – that in groundwater disputes among overlying owners, all have equal rights if the supply of groundwater is insufficient for all of their needs.  All of have equal rights to the reduced supply, and if the supply is insufficient for all of their needs, each user is entitled to a fair and just proportion of what water there is.  So there are no senior overlying users that gain priority just by being the first to pump groundwater from a particular groundwater basin.”

Any groundwater that is surplus to the needs of these overlying owners is then and only then available for appropriation for use off the land itself,” Professor Frank said.  “With respect to that off-site appropriative use, the California water rights system has adopted from the surface water law of appropriative rights, the doctrine of first in time, first in right.  But again, there’s no permit system for this, it’s all adjudicated in the courts on a case by case, ad hoc basis.”

Like all other water rights, groundwater rights can be obtained by adverse use known in the legal system as prescription,” he said.  “That’s a fairly high technical process but that’s the third and final type of recognized groundwater right in the state of California.”

California law provides three alternative procedures by which groundwater rights under varying conditions can be adjudicated in the case of a dispute, he said:

  1.  A civil lawsuit in state or federal court
  2. A reference proceeding by which a court refers a particular groundwater dispute to the State Water Resources Control Board for administrative resolution as is authorized by the legislature
  3. The State Water Board can itself file an action in state court to restrict pumping “to prevent destruction of or irreparable injury to groundwater quality” under water code section 2100.

It is my understanding that the latter procedure has seldom if ever been invoked by the board,” said Professor Frank.

Semitropic Water Bank #3 groundwater pump smaller  04-2008Groundwater adjudications are generally conducted on a very groundwater basin-by-basin basis, he said.  “These proceedings are frequently criticized as being lengthy, complicated, and expensive for all concerned.  They are particularly difficult and protracted where you have hundreds or even thousands of individual claimants to groundwater from a particular groundwater basin,” he said.  “At the same time, once these adjudications are concluded, they are able to resolve multi-party complex and seemingly intractable groundwater right disputes on a comprehensive long term basis, which is a result not otherwise available under existing law.”

Finally, under California law, courts have not only the authority but also the obligation to investigate and where necessary, devise so-called physical solutions to groundwater disputes,” he said.  “Sometimes the parties to such court-supervised adjudication are able to negotiate a physical solution which parcels out the available resource.  In many cases, groundwater adjudications by courts result in creation of a governance system for groundwater, including the appointment of watermasters or new water agencies to manage a particular groundwater basin or sub-basin, consistent with the terms of the judicial adjudication.”

Discussion questions

If you were King and you were sitting up here, what would you do?” asked Senator Wolk.  “Would you extend the Recordation Act statewide or would there be some other action  that you think should be taken immediately.

Short answer is yes,” replied Professor Frank.  “I don’t think anything that you or we do is meaningful or is going to work in the long term unless we hard information and reliable data.  So to require the development, collection and reporting and public availability of these data on a real time and continuing basis, all of that – without that information, really no system which I am aware of works terribly well to address the kind of problems this Committee is addressing this year.”

Having served in Yolo County on the board and knowing how agriculture and farmers react to publicly measuring and making that available statewide,” said Senator Wolk.  “Do you think there’s any validity to their concerns and if so, is there any compromise approach that you think might work?  Could we do this on a county by county basis without being specific or the way the hydrology is, or do you think that makes no sense?

Groundwater basins and groundwater migration don’t affect political boundaries, so that’s one problem with relying exclusively on political cities or counties,” he said.  “I think relatively more responsive to these problems are specially created water districts, which may be an aggregation of political and other maybe newly created entities that more closely track the groundwater basin boundaries.  We have one example of this that’s long standing with our regional water quality control boards whose boundaries are created based upon watersheds.  That’s one of the few political determinations that is actually based on hydrology and it makes a whole lot of sense and it works there, so there are local and regional solutions that can be worked out.  But in my opinion, you can’t be a slave to political boundaries.  You need to do it effectively.  You need to find the boundaries of the affected water basin or sub-basin and build a governance structure that respects and can address those hydrologic boundaries.”

If you did the regional water quality board boundaries, that would make some hydrologic sense, some basin wide sense?” asked Senator Wolk.

I was just using that as an analogy,” replied Professor Frank.  “I think that with groundwater basins, they are much more numerous and I think that that same rubric which is designed primarily to address water quality issues doesn’t work as well.  You would have to have much more compartmentalized, relatively smaller governance districts if the decision were made to go with an expanded system of groundwater management and regulation on a regional or localized basis.”

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