The role of adjudications in groundwater governance and management

At the San Gabriel Valley Water Forum held in the fall of 2016, Bill Blomquist, a professor of political science and adjunct professor of Public and Environmental Affairs, Indiana University at Purdue, gave this presentation on lessons learned from how adjudicated basins have handled groundwater management in California.

Bill Blomquist’s research interests concern governmental organization and public policy, with a specialization in the field of water institutions and water management.  His publications include four books – Embracing Watershed Politics (2008) with Edella Schlager, Integrated River Basin Management through Decentralization (2006) with Karin Kemper and Ariel Dinar, Common Waters, Common Streams (2004) with Edella Schlager and Tanya Heikkila, and Dividing the Waters (1992).

We have 127 groundwater basins that have to implement the new Sustainable Groundwater Management Act, or SGMA.  What can they learn?,” he began.  “This begins with a different way of thinking about the role of courts.”

He noted that the court’s role in adjudications is not the way the general public thinks about courts.  Courts are something that for most of the public, are something they want to stay away from; it usually means that there is some dispute, and the role of the judge is to decide in favor of one party or the other.  That is one role that the courts have, but it’s not their only role, noted Mr. Blomquist.

Courts that are sitting as courts of equity also have the authority to shape remedies,” he said.  “They can take complex situations and allow the parties through the use of legal processes to discover information, to present arguments, to negotiate settlements, and then to bring those settlements back to the court, to give them the stamp of public authority so that then they are enforceable; then for the court to retain continuing jurisdiction of that case over time, so as conditions change or new disputes arise or new information is forthcoming, there is an opportunity to go back and reopen that judgement, reconsider, make changes, and move forward.”

PATTERNS IN THE EVOLUTION OF BASIN ADJUDICATIONS – 1945-2016

California has a number of groundwater adjudications, the majority of which are in Southern California.  Rather than go through each one, Mr. Blomquist said he would pull out some patterns that he observed by looking over the adjudications that have occurred the last 50 years across several different basins.

From fixed to variable safe yield: “One is a movement away from the idea that there’s a fixed safe yield for a basin that is set once, and then that’s the amount of water, the amount of acre-feet per year you can extract in perpetuity,” he said.  “The idea of fixed safe yield has moved to a variable yield concept that looks at basin conditions, weather forecasts, and other information, and then makes adjustments from year to year in how much we should rely on the groundwater basin use.”

From ministerial to policy-making watermasters: “Watermasters have evolved,” he said.  “The watermasters appointed in the first groundwater basins mainly served accounting and reporting functions; the watermasters in main San Gabriel and subsequent basins tend to be policy making watermasters who are deliberating with respect to setting and operating safe yields each year and looking at basin conditions.  They are typically multi-member now with representatives of pumpers from around the basins or overlying water districts, or some combination of the two.  They are more like policy making bodies now.”

From production-only rights to production-and- storage rights:  “We’ve begun to look at not just production rights but whether pumpers in the basin might have rights to store.”

Some recognition of water quality considerations:  “It’s not very widespread,” he acknowledged.

Use of the courts’ continuing jurisdiction to modify the original judgments:  In some cases, there is the use of the continuing jurisdiction of the court to go back and modify judgments,” he said.  “It’s the ability to take new information, technological change, conflict or whatever the new situation is and go back to court, rethink things and set some new rules or create a new project or a new opportunity.”

Changes to some judgments influenced later cases but also fed back to earlier ones:  “We’ve seen learning transfer from basin to basin, so a decision or a modification that happens in one place, is heard about, learned about, picked up by other basins, and feeds into either new adjudications or sometimes feeds back into earlier adjudications and leads to new modifications of judgments.”

WHY ADJUDICATIONS WERE SOUGHT

Mr. Blomquist then turned to what the intentions were of the parties who sought adjudications in the early years.  “Of course, they were trying to preserve their local supplies, but they also were undertaking the adjudication process in many cases deliberately for the purpose of creating rules specific to that basin,” he said.  “Political jurisdictional boundaries, as you all know, don’t match natural aquifer boundaries, and so one of the things you can do if you adjudicate a basin is essentially create a rule-making body that fits the shape of that groundwater basin.  That can be very important, and in many cases, that was a motivation.”

They were interested in preserving local supplies from various threats and in creating rules that would apply within a basin by putting boundaries around the problem and tailoring solutions, he said.  They also wanted to create enforceable and transferable groundwater rights, curtail free riding, and finance basin replenishment and protection programs.

The folk wisdom about adjudications, especially in Southern California, is adjudications happened because imported water was available, and that is true to a point; adjudications happened in Southern California because imported water was available and imported water facilitated cutting back on pumping,” Mr. Blomquist said.  “But what is often left out unless you go deeper into the history is that adjudications in Southern California happened because imported water was available and we had to figure out who was going to pay for it.

Imported water was just not the facilitator of adjudications; it was the trigger of adjudications,” he continued.  “Everybody wanted to continue to pump the cheap local stuff and nobody wanted to pay for the far away stuff that was more expensive, so the way you could get people – essentially force people to pay for the far away stuff that was more expensive was to limit their ability to pump the cheap local stuff.  And then tax that pumping to generate a stream of revenue that also helped to pay for the replenishment projects.  That was an intended purpose and it’s one of the most important outcomes.”

As imported water supplies have become more constrained in recent years, sometimes the question is asked if these adjudicated basins can survive the loss or reduction of imported water.  “What you see happening though is that the stream of revenue that pumpers pay in adjudicated basins then becomes a source for paying for other projects,” he said.  “So it’s not just imported water in every groundwater basin that’s being used for replenishment, it’s treated wastewater, etc, and that keeping people from being able to freeride on the cheap local stuff and forcing them to pay for supplemental water in the basin has also been a way of financing newer projects and newer sources of water such as treated wastewater, stormwater capture, and some of these things we see going on around the state.”

ADJUDICATIONS OFTEN PART OF BROADER MANAGEMENT EFFORTS

An adjudication by itself doesn’t solve a groundwater management problem; an adjudication by itself doesn’t create sustainability, but Mr. Blomquist pointed out that adjudications were never intended to be that; they were always part of larger efforts.  In many of these basins, water user associations were created either as a precursor to or in the course of the adjudication process to create a forum for deliberation, disputation, and negotiation among the people who relied on that basin.  Adjudications were part of getting access to supplemental supplies, which was both a facilitation and a trigger.

And adjudications were typically accompanied by actions against neighboring basins.  The San Gabriel River watershed is an example of this where the adjudication moved upstream, eventually reaching the main San Gabriel Basin in the early 1970s, he noted.

So adjudications don’t work well by themselves,” he said.  “As we look forward to the implementation of SGMA, some of the conversation around the implementation of SGMA is, ‘are you going to adjudicate the basin or are you going to do something else?’  If you look at the adjudicated basins and the lessons that we can draw from them, that’s the wrong question.  The question, ‘are you going to adjudicate the basin or not’ – that is a pertinent question, but even if your answer to that is yes, then the question is, ‘are you going to adjudicate the basin and what else are you going to do around that to create sustainable groundwater management?’”

GROUNDWATER MANAGEMENT REQUIRES GOVERNANCE

To manage groundwater basin, you have to be able to govern the groundwater basin,” Mr. Blomquist said.  “I’m a political scientist, and sometimes I talk to other political scientists, and I have used the analogy that some of these basin judgments really should be thought of as basin constitutions.  What you find in an adjudicated groundwater basin in the judgment is the same things that you find in a constitution: who’s in, who’s out, who has a vote, what’s the decision making structure going to be, and what scope of things can that decision making structure make decisions about.”

That’s governance,” he continued.  “It doesn’t always have to come from a court judgment, but a groundwater basin has to be governed by some structure – a Special Act District, policy making watermaster – it has to be governed by some sort of structure in order to be managed.   In some ways it is more important than the fact that these adjudications allocated pumping rights is that these adjudications created governance structures, and that allows then a chance to visit new information, deal with new situations, and solve conflicts that arise because you have a decision making process in place.

UNRESOLVED ISSUES

Mr. Blomquist noted that there are still unresolved issues in adjudicated basins.  “There are still unresolved issues about storage and who has rights to store water in the basin and who has rights to extract water from the basin and under what conditions and so forth,” Mr. Blomquist said.  “Groundwater rights law in California remains a bit of a mess and some of the court decisions have contributed to that mess, quite honestly.”

We still manage groundwater and surface water under separate systems and separate law, and that means that our ability to conjunctively use surface and groundwater in California is still underutilized; and some of the status of the newer developed water sources like treated wastewater, stormwater capture, etc. is unclear,” he continued.  “Land use decisions affect water supply and vice versa, but we make them through separate processes and through separate bodies.”

He also pointed out that SGMA defines stakeholders in a groundwater basin in broader terms than just pumpers, and due to legal requirements of standing and other things, adjudications have pretty much defined stakeholders as pumpers.  “Pumpers have rights and pumpers participate in the decision making process and everybody else who lives in the groundwater basin has a somewhat different standing as a stakeholder; it may be necessary, especially in the basins that have to implement SGMA, to find a way to broaden the definition of stakeholders beyond just pumpers.

LAST THOUGHTS …

The role of adjudications in creating basin governance may be somewhat underappreciated, and I’m here to encourage you to appreciate it more,” Mr. Blomquist said.  “No one institutional approach institutional approach will suffice.  We’ve learned a lot, we still have a lot to learn, and heaven knows, there’s still plenty to do.”

FOR MORE FROM THE SAN GABRIEL VALLEY WATER FORUM …

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