California’s newly passed groundwater management legislation has rightly been called “the most significant set of water reforms to pass the Legislature since at least the Burns-Porter Act in 1960 that authorized the State Water Project”. In a state where overpumping is epidemic, regulation is incredibly important, as Jay Lund and Thomas Harter recently explained:
Sustaining a prosperous civilization in California’s dry climate requires firm accounting of all major water resources, including groundwater. When management of a resource as valuable as groundwater is lacking, overdraft and litigation fill the void. Investments that depend on groundwater then become riskier, leading water users to pursue more secure, but more expensive and environmentally damaging water supply sources such as deeper wells and new reservoirs. The added risk of unreliable groundwater also can increase the cost of credit for agriculture and rural development.
But it is important to remember that the notion that California groundwater is completely unregulated is a myth that misleads in important ways. California communities of interest in a water basin have long had the opportunity to come together to self-regulate their excessive pumping. Elinor Ostrom’s “Governing the Commons” explains how it was done in places like my old home, the San Gabriel Valley. Doing it, as Ostrom so helpfully documented, requires painstaking assembly of social and institutional capital in the form of shared understandings of the resources, institutions to measure and manage it, and agreements that in a basin that is being overpumped inevitably require some pumpers to pump less. This has proven both enormously successful in some places and enormously difficult in others.
As explained in this helpful overview by the folks at the Downey Brand law firm, the new legislation offers up some expanded and clarified legal authorities, and a carrot and stick approach (if y’all don’t get together and come up with your own community-driven groundwater management plan, the state will come in and impose one). But it still requires communities of interest to do the hard work described by Ostrom, work that they have up to now been unable or unwilling to do:
In many groundwater basins, it has been difficult to develop the political consensus needed to make hard choices about groundwater. After all, the members of local governing boards are often landowners or residents of their respective districts; the last thing that they want to do is to impose hardships on their friends and neighbors.
So yes, this is enormously important legislation. But it’s just the start of groundwater regulation in California, and success is not assured.
(h/t to Mavensnotebook, an invaluable piece of social capital/public good if ever there was one, for pointing me to the Downey Brand overview of the legislation)
You are exactly right! This issue has really just begun. The legislation mostly provided some basis for groundwater management to move forward. It has allowed movement, rather than determined which precise direction groundwater movement will occur. Both local and state agencies will be scratching their heads on this, while stakeholders argue their interests. The future of groundwater is uncertain, but it will almost certainly be different.
Jay – Thanks. Are you optimistic that local administrative efforts will largely succeed, and that state intervention in response to failure will largely not be needed? How are you handicapping the likelihood of success?
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(Also posted elsewhere)
Assembly Bill 1739 and Senate Bill 1168 are frauds, in that giving local districts power to monitor and regulate withdrawal from underground aquifers is giving them no power!!
How can I make this claim?
Because any attempts by local agencies to develop new law on water rights will be met with well-financed law suits, and every water agency is terrified by this prospect.
Result: Nothing will get done, though legislators will preen themselves that they have enabled local agencies to solve the state’s water problems at the local level.
Everybody for their own reasons wants this emperor to appear clothed. For openers:
Farmers & Farm Bureau, because it preserves the status quo;
Legislators because it appears they have done something;
Local water agencies, because they can say they have power, but can find reasons not to exercise it;
Environmental advocates because they can claim success in finally succeeding in changing public water law.
The only honest approach is to make new State law covering withdrawal from aquifers, based on the concept that nobody owns underground water, because if flows to whomever pumps it.
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