GROUNDWATER TWO-FOR: The disconnect between groundwater legal systems and groundwater hydrology; Proactively managing groundwater to sustain communities and nature in an uncertain future

David Sandino and Maurice Hall present their big ideas on groundwater management

The Groundwater Resources Association of California (GRA) created the David Keith Todd Distinguished Lecture Series to honor Dr. David Keith Todd, a GRA 1999 Lifetime Achievement Award recipient, for his enormous contributions to groundwater science and technology, and to foster interest and excellence in applied groundwater science and technology. Two lecturers are selected with the lectures offered in Northern and Southern California at universities, statewide and regional GRA events, and GRA’s Annual Conference and Meeting.

The 2019 lectures featured David Sandino, Senior Staff Counsel at the Department of Water Resources, who spoke about the disconnect between legal groundwater systems and how the system actually works, describing the areas where they do not accurately reflect the physical environment and pose problems for effective groundwater management; and Maurice Hall, Associate Vice President of Ecosystems-Water at the Environmental Defense Fund, who spoke of how more holistic and inclusive groundwater management can increase the resilience of our water supply and sustain and enhance the services that groundwater basins provide for a wide range of stakeholders.

At the Groundwater Resources Association’s 2019 Western Groundwater Congress, Mr. Sandino and Mr. Hall gave brief presentations of their lectures.

DAVID SANDINO: The disconnect between groundwater legal systems and groundwater hydrology: what changes should be made?

David Sandino served as Chief Counsel for the California Department of Water Resources from 2006-2010 and worked on water, environmental, and energy issues during his twenty year career with the Department.  He has taught water law, environmental law, energy resources law, real property and local government law as well as written numerous articles on the environment, water, and land use.

To better manage groundwater, groundwater models that reflect the physical environmental are a common and helpful tool. However, there are uncertainties in models due to data limitations, grid spacing, and other factors. Similarly, effective legal models that likewise reflect the physical environment are needed to manage groundwater. Current groundwater laws have limitations too that do not always reflect the physical environment, creating management challenges. Can SGMA help to bridge these limitations?

David Sandino began by noting that while he does work for the Department of Water Resources, he will be speaking as an academic.

He said when he gives presentations, it’s usually to smart technical people who are always searching to try to improve groundwater models because they aren’t perfect, the premise being that to the extent that models get closer to physical reality, the better that model is to be used for groundwater management.  And it occurred to him that it was similar for those working in groundwater law.

The attorneys and the legal profession have created models in law that are supposed to represent what’s going on in the physical world,” he said.  “I would argue that the models that we’ve created in the legal system are even less accurate than the models that are used for engineering and technical use.  So my idea is that we have technical models that deal with groundwater and we have the same thing in the legal arena, but the legal models that are out there are not very good.  Hence, we have all these groundwater problems.  I’m going to point out some of the deficiencies in the models, and then I’m going to propose how SGMA might help us move forward to fix some of these problems in the groundwater legal models.”

Water as a property right

When lawyers look at a physical space, they see things like rights and property ownership.  They start allocating rights.  Whenever someone buys real property, they own the rights to the air space above, they own the surface, but they also own what’s underneath.  And what’s underneath, hopefully, is groundwater.  These are considered private property rights in California and the other 49 states.

Yes, water is a public resource, and that’s one of the conundrums about water,” said Mr. Sandino.  “There’s a public component to it, but there’s also a private right component, so if someone owns some surface property, they get the property rights with it, including the groundwater rights.”

The problem is there are a lot of property owners, so how does the legal system attempt to allocate these property rights over these groundwater resources?   The California law model recognizes and distinguishes between the overlyers (1 and 2 on the graphic) who are pumping water and using it on their land, and the appropriators (3 and 4) who are pumping the water and taking it out of the basin.

The system was intended to manage these water users and I’m going to argue with the goal of sustainability to try to make sure that there’s water available to protect especially the overlyers because the overlyers have priority in the system,” he said.  “They are the senior users, meaning if there’s not enough water to go around, one and two have priority over three and four.  Three and four would have to in essence curtail their pumping to protect the water use of one and two, and that means that three and four are considered juniors.”

This is California law and it’s been in place for over 100 years.  This is a system the lawyers created to manage groundwater basins, so why hasn’t it worked and why do we need SGMA?

Turning theory into reality

In a basin with several groundwater pumpers, cities, and appropriators, what property rights system is capable of allocating the water and the groundwater rights in a way that’s sustainable?

The answer is, it hasn’t worked very well,” Mr. Sandino said.  “One reason is the incentive known in environmental law as the tragedy of the commons.  Unless there is some restraint on a particular well owner, there is an incentive for each well owner to maximize their own individual gains.  It’s a fundamental principle to any kind of environmental policy.  There is an incentive for the well owners to pump, and the consequence of that is freedom in the commons bring ruin to all; the overdrafts and unsustainable water use is a direct relationship to this system that has given property rights to each well owner.

Does that mean that the groundwater system created by lawyers doesn’t work every time?  He said that we can make an argument in that once one or several well owners decides to protect their rights, then maybe it might work.  Those basins are called adjudicated basins and they are basins in which the correlative rights doctrine was applied via a lawsuit.

Each property in theory would have their rights allocated,” he said.  “Whether those adjudications were aimed at sustainability – I don’t think that’s the case.  But anyway, the adjudications had a potential to apply that groundwater doctrine in a way that would allow for sustainability.”

However, the Central Valley, a large user of groundwater, does not have any adjudicated basins so each well owner that has overlying or appropriative water rights is allowed to pump more or less how they please.

I am going to argue that it’s pretty well shown that the property rights system by itself is a broken system and hasn’t really functioned well,” he said.  “It’s not just in California;Texas is a parallel universe to California when it comes to water.  They have a property rights system, too, and they suffer from the same anguish that California does with overdraft.”

Public trust doctrine

Another defect in the legal model is groundwater-surface water interaction.  Nature has connected groundwater and surface water in many of the watersheds, but there is one problem – lawyers didn’t make that connection.’

We have surface water law, we have groundwater law, and they have been put in silos; they developed largely independently,” Mr. Sandino said.  “And as a consequence, there is a disconnect between groundwater and surface water law and whenever we have a groundwater-surface water interaction, which based on what I’m hearing is very frequent in California, it creates a management challenge because the groundwater users have their groundwater rights, the surface water users have their surface water rights, you have instream needs, how do you recognize all these things, especially when the legal system didn’t connect them?

Mr. Sandino sees hope in the recent court case, the Environmental Law Foundation versus the State Water Board a 2018 decision which applied the public trust doctrine to groundwater use.  The public trust doctrine came from ancient Roman law and English law and essentially says that navigable waterways are special and are held in trust for future generations.  The Supreme Court applied that doctrine in the National Audubon’s Mono Lake case that determined the diversions that Los Angeles was taking from the Mono Lake Basin were impacting Mono Lake and that was a potential violation of the public trust doctrine that had to be reconciled.

We’ve been waiting for 30 years for whether or not the public trust doctrine is going to be stuck into groundwater law, and we have our first case that did it,” he said.  “This was exciting for all the water folks because this case said because of groundwater pumping that was occurring in Siskiyou County on the Scott River, that groundwater pumping affected the Scott River and its tributaries which would potentially impact public trust resources such as migratory fish.  So the court said that that county had to consider the public trust when it was issuing groundwater well permits.

That was a big step for environmental protection as well as a big step for changing the paradigm for the legal framework.   Now there is a connection, at least in Siskiyou County, when we affect public trust resources between groundwater pumping and surface water use, the County has to think about environmental impacts to streams when it issues permits.  We don’t know yet if this applies to all counties or if it applies to Groundwater Sustainability Agencies, but the case is definitely fertile ground for discussion, he said.

Water quality disconnects

There is another disconnection between groundwater quality and surface water quality, and in certain watersheds, impacts to groundwater quality can affect surface water quality and vice-versa.  Those have been disconnected in the legal system as well.

We created a body of law that deals with groundwater quality, we’ve created a body of law that deals with surface water quality, and we didn’t reconcile the two,” he said.  “That’s how lawyers like to think.  We compartmentalize in a way that’s simple.”

The most notorious example is the Clean Water Act, which is intended to keep surface waters free from pollutants; it has a complicated permitting system and a definition of what waters are protected, and it basically has excluded groundwater from Clean Water Act protection.  There are other laws that protect groundwater, but not the Clean Water Act in general.

However, there have been a variety of cases that have been trying to erode that distinction.  There is now a case pending with the California Supreme Court that originated in Hawaii, the Wildlife Fund versus County of Maui.  The case deals with a water treatment facility that was discharging its treated effluent into a groundwater basin, but that groundwater basin was close to the coastline and the treated effluent would eventually reach the ocean waters itself.  The question was, if those pollutants are discharged into groundwater and they reach the coastal waters, is that going to trigger the Clean Water Act and require a permit, even though the discharge is to groundwater?

The traditional thinking is no, but this case said there is a nexus between the groundwater and the coastal waters which are subject to Clean Water Act, so therefore attorneys, break down your model and start regulating certain kinds of groundwaters that are connected to surface waters,” he said.  “So this is another step I think in trying to bridge the models.”

The Sustainable Groundwater Management Act (SGMA)

The Sustainable Groundwater Management Act (or SGMA) is aimed towards sustainable groundwater management, but the regulatory model is not the state; instead, it is local agencies and if the local agencies don’t come through, then the backstop is the State Water Board.

Might SGMA be a way to better connect our legal groundwater models?  Mr. Sandino looked at the requirements for Groundwater Sustainability Plans, which are to avoid undesirable significant conditions of chronic overdraft, reduction of groundwater storage, seawater intrusion, water quality, land subsidence, and impacts to beneficial uses of surface water.

These conditions have connections that overlap between groundwater and surface water,” he said.  “For instance, you may have an impact on the beneficial use of surface water that may be impacted by groundwater use and vice versa.  Or you may have an impact on water quality that being incurred at the surface, and that impacts groundwater, or vice versa.”

What I theorized is that as these Groundwater Sustainability Plans (GSPs) are being developed, they are going to have to reconcile these legal disconnects that occur in our groundwater models: the surface water and groundwater disconnects, the water quality disconnects, and I’m theorizing that there will be engineering solutions to try to bridge these legal disconnects in the GSPs.  We might see right before our eyes a kind of improvement in the legal model through the practical application of these GSPs.”

Mr. Sandino pointed out that this has occurred before in our legal jurisprudence.  “Attorneys can’t allocate surface water, so in the past, they’ve come up with physical solutions, meaning that some engineering or some large agency comes in and saves the day because they know that our water legal foundation for surface water isn’t working.  So I’m hopeful that there are going to be some creative solutions that plug the gaps relating to the problems that I see with the legal foundation.”

In conclusion …

Mr. Sandino then concluded with his thoughts about the future.

I’m going to argue that the GSPs that are out there are going to be in a position to see things whole and by whole, I mean all of the problems that are in groundwater law, they are going to see beyond that, and they are going to have the ability potentially to fix that.  I’ll call this the theory of everything.  They are going to come up with different legal models perhaps that can bridge some of the holes that the existing legal model has.  They’ll work with their attorneys on this, but there is some potential for that. I’m going to call it integrated studies where slowly but surely the case law is developing to integrate all water management: surface, groundwater, water quality in an integrative framework, it’s going to take time, but I think that’s the direction everything is moving.  We’ll see if that’s the case.

I also think to the extent we see the adjudications, they are going to be dealing with the same issue – they are going to try to reconcile these holes within the legal framework and try to come up with practical solutions.  I don’t think it’s going to be black and white like I showed you with the correlative rights doctrine and the appropriative doctrine; there will be some accommodation.  It’s not going to be instantaneous; we’re talking about 20-30 years of development, but it’s going to be a fun ride.

MAURICE HALL: Resilience from below: Proactively managing groundwater to sustain communities and nature in an uncertain future

As associate vice president of water for the Ecosystems Program, Maurice Hall oversees Environmental Defense Fund’s (EDF) work to revitalize working rivers and their ability to provide a resilient water supply. He focuses on developing collaborative water management approaches to meet ecosystem needs alongside the needs of farms and cities.

Groundwater provides a wide array of services to support our economy and communities – it captures rainfall and delivers it to wells; it sustains rivers and streams, supports groundwater-dependent ecosystems, and serves as an storage reservoir. Yet, except for a few notable exceptions, our groundwater basins, these amazing natural infrastructure facilities, are largely managed passively, if they are managed at all. With a bit more attention and sophistication, however, the multiple benefits that groundwater basins provide can be preserved, and in some cases, enhanced.

Maurice Hall began by stating that he hopes to inspire the audience to think beyond the basic requirements of SGMA and think about how proactive groundwater management can be implemented in new and innovative ways.

If we can do that, my argument is that it’s going to be a great anchor for water supply resilience going forward,” he said.

He acknowledged that it might seem unusual to see environmental organizations like the Environmental Defense Fund involved in groundwater management.  When many of us take a move towards environmental advocacy in our careers, we sometimes have in mind a beautiful stream unfettered by the hands of man, but quickly we realize that in the West, we have a lot of built infrastructure and the water that shows up in our rivers and streams is there because someone is taking an action and turning a knob to make it show up, he said.

At the Environmental Defense Fund, we really recognize that this is really the case,” Mr. Hall said.  “So if we want the water needs of the environment to show up, we’re going to have to figure out how to build those needs into the everyday management of water.  We need to make it easy and straightforward and automatic for those who get up and turn the knobs on our dams or those who do the planning to plan and incorporate environmental needs into that planning, so that’s the lens that we take on water management and on groundwater management.

He then presented a picture of the Amargosa River which flows from Nevada through southeast California and ends in Death Valley which he calls “the magic of groundwater”.  The picture about 50 miles east of Death Valley in Amargosa Canyon.

This stream flows year ‘round, day in and day out, in one of the most austere dry parched landscapes that you can imagine,” he said.  “The reason it does is because upstream, primarily in Nevada, groundwater basins capture the intermittent thunderstorm flows and the little bits of flow that happens when the snow melts on some of the mountains and they store it, hold it, and slowly convey it to the entrance of this canyon where the geology forces it to the surface.   Day in and day out, the magic of groundwater shows up in this ribbon of green in the middle of an amazingly hot and otherwise desolate place.”

Groundwater basins are magic, but I argue that magic is underutilized.  So how can we unlock the potential that groundwater basins have?  And that’s what I’m urging you to work with us on going into the future to figure out.”

Groundwater basins as natural infrastructure

In the past, groundwater managers have tended to be passive and reactionary. They figured out how to put wells in and pump water that shows up every day; they didn’t really pay attention to it until something happens such as a well goes dry or a contaminant shows up, and then they scramble into action.  Groundwater management tended to be undermonitored, sometimes not monitored at all, and underfunded, he said.

If we can start thinking of the groundwater basins as natural infrastructure – think about it from an engineering-infrastructure management standpoint, it begins to change our perspective,” he said.  “and this is key to unlocking the magic of groundwater.”

He illustrated the concept by presenting a graphic of a hypothetical large alluvial groundwater basin.  There are a lot of basins similar to this in California.  The basin collects rain the intermittent rains that fall primarily in the winter, the water from unlined canals in the distribution systems, the extra water applied in irrigation that isn’t taken up by the crops., as well as the intermittent flows from the hills, the recharge from rivers, and even some of the water from hard rock aquifers that might be around.

Besides collecting all that water, it gets treated from the great bioreactors in the upper levels of the soil.  For the most part, the groundwater in California is of good quality; there are exceptions, but we really have an automatic treatment system there that we didn’t build, he said.  It has a huge storage capacity that conveys water to the wells in the basin.  It also provides habitat support for groundwater dependent ecosystems and riparian systems, and provides streamflow support in those cases where groundwater levels remain high.

This is an amazing piece of infrastructure,” Mr. Hall pointed out.  “If we had to build something the size of the Central Valley or the Salinas Valley, it would be really expensive.  And if we had built it an paid to build it, we would have instrumented the devil out of this thing.  We would have SCADA systems all over the place, we would know what it was doing and we would be thinking that since we invested in all of this, how are we going to get the value out of our investment.”

But we can have those same thoughts without having to build it, and that provides us a way to make the argument to bring in the resources because we really do need to manage this,” he continued.  “It’s going to cost a bit to manage it because we can’t quite get it for free and manage it and have it continue to yield the benefits.”

So let’s think of it as natural infrastructure that’s underutilized, and let’s change the passive management of the past, he said.  He pointed out that SGMA at its roots is actually fairly passive as well: the basic requirements of SGMA basically say, ‘avoid these things’ which isn’t really active, either.  However, now that SGMA is here, someone is watching the ship and has responsibility for managing this natural infrastructure.

Beyond basic SGMA compliance: managing for resilience

Mr. Hall acknowledged that many folks have been working on getting their groundwater sustainability plans finished, and while there are hurdles that have already been overcome, there are still many to go.

However, if we can think about what these basins can do if we manage them proactively and begin coming up with these ideas and talking with our potential collaborators, we can go well beyond the basic requirements of SGMA and contribute widely to the resilience of California’s water,” he said.

Resilience is becoming a major focus of most of the work at the Environmental Defense Fund,  but what does that mean?  At EDF, they have come up with a definition of resilience: ‘The capacity of socio-ecological systems to support human and natural well-being as climate change and other stressors interact unpredictably over time.’

Water supply resilience is about anticipating change, Mr. Hall said.  A lot of our water supply concepts and theory has been developed on the idea that the future is going to look like the past, but now we know that’s not the case – there’s a lot of things that are going to change.   The climate and the hydrology are changing, as are human needs which will continue to change.  Likewise, our understanding of groundwater is going to change and we’re going to learn things that we didn’t know before.  In addition, the management tools we have are changing.

A lot of different things are changing, so we need to anticipate that change and plan to deal with it so we can avoid the harmful disruptions that are going to happen if we don’t pay attention,” said Mr. Hall.

It’s important to identify what are the different services that the groundwater basin provides in order to preserve and protect those services, he said.  First would be water supply; we want to continue to have the groundwater serve as a water supply for farms and cities.  There may be habitats, groundwater dependent ecosystems, springs and seeps, and riparian systems along the river that the depend on high groundwater levels.  We may want to protect streamflows and community drinking supplies.

What are the services we want to support and what are groundwater levels that we need to maintain to support those different services so that we don’t get down the road and find out that our streams are going dry and our wells are starting to go dry, our water quality is beginning to be compromised because we’ve drawn it down,” Mr. Hall said.  “What are the levels we need to maintain in order to preserve all the benefits that the groundwater provides?

Tools for groundwater resilience

Mr. Hall then discussed some of the tools for managing for resilience.  The first and most important is community engagement for a lot of different reasons.

First of all, you want to identify what all of the services are that you want to preserve,” he said.  “In the past, it’s been the big municipalities and the big ag interests get protected and the others sort of just deal with the situation, but we need to engage everyone to identify what all those needs are.  It’s also important for general transparency and information exchange.  One of the most important things is political durability.  We want the services and the management that we implement to be durable over the long-term, so community engagement is really important and key for managing for resilience.”

Another tool is managed recharge.  There are areas in California that have been practicing this for a while so it’s not a new thing.  This includes dedicated recharge basins, or even canal leakage, he said, noting that Yolo County uses its canal system to deliberately recharge their aquifer and it’s one of the more well-managed systems in California.  There is also on-farm recharge which has been practiced in different places but really is being perfected in earnest now.

Water trading programs, designed correctly, can be an incredibly valuable tool for allowing flexibility in groundwater management.

There is also ‘zonal management’ which Mr. Hall described as basically identifying site-specific conditions that is needed in parts of the aquifer to preserve benefits that might not be needed in other areas.  “For instance, you may need to maintain groundwater levels at a particular level near the streams to protect riparian habitat or streamflow, you may want to protect some of these ecosystems and you may want to protect well integrity and well productivity in certain areas,” he said.

So my big point today is that with SGMA in place, the GSAs and those professionals that surround them are in a position to really contribute dramatically to the future of California’s water supply by managing our natural infrastructure and thinking about it proactively to protect and maintain these services they provide.  Services such as protecting drinking water, providing a drought water supply, sustaining streamflows, supporting ecosystems, and sustaining water supplies for farms and cities.”

Taking it to the next level: managing for multiple benefits

Mr. Hall then urged people to think more creatively about what can be done now and in the next couple of years as a management system is put in place.  What can we do if we think proactively and think about groundwater basins as really valuable infrastructure we need to get the most value out of?

He gave an example about operating a recharge pond or even on-farm recharge in ways that match the habitat and timing needs of migratory birds, noting that this is something that the Nature Conservancy, Audubon, Point Blue and others have been working to perfect in the Central Valley.  It’s been very successful; however, it’s been fairly narrowly focused in a handful of areas.  Now that GSAs will need to do managed recharge, think about how to get more benefit out of a managed recharge program.

Mr. Hall said another example of really sophisticated thoughtful groundwater management is a program being advanced by the Regional Sanitation District in Sacramento to take treated wastewater and supply it to agricultural pumpers in the southern part of the County; it actually stabilizes their water supply and raises groundwater levels that protect and support habitat along the Cosumnes River, as well as banking water over time that can be used during drought periods.  It’s a really impressive idea that is on its way to becoming reality, he said.

Another idea that is somewhat more aspirational but could also give more flexibility in how Central Valley streams are managed for fish and wildlife is to have environmental water allocations.  “If we had some thoughtful managers to think about how to manage these allocations, they might bank some of that water in different groundwater basins along the Central Valley to use for the benefit of fish and wildlife which could be used to provide supplemental flows during really low flow periods; that could be done by pumping water directly out of the groundwater and putting it in a stream or it could be done by conjunctive use and trading with someone with banked groundwater for surface water users so that they can leave it instream.  Or perhaps we need some emergency cool water in certain times to keep from impacting winter run chinook that happen to be living in the stream.”

Imagine the possibilities of having banked groundwater that is allocated for the environment as a tool for the community to better manage the habitats and better manage the water supplies for farms and cities in the Central Valley,” he said.  “These are the types of possibilities that these amazing pieces of infrastructure offer to us.  I urge you to move forward thinking more creatively about going beyond the basic requirements of SGMA.”

In conclusion …

Mr. Hall concluded by saying that we need to figure this out.  “We need to do it here where we have management institutions in place and credible resources at universities and the Department of Water Resources and the expertise in all the consultants that we have, because around the world, we are depleting our groundwater basins at a scary rate.  And people are going to suffer, food production is going to suffer, and the environment is going to suffer the longer we wait to address these issues in other parts of the world.

Thank you very much.”

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