California Groundwater Law Tests State’s Capacity to Oversee A Vital Resource

By Brett Walton
Circle of Blue

SOQUEL, California — On September 16, 2014, Governor Jerry Brown, cheerfully triumphant, signed into law the Sustainable Groundwater Management Act, which many observers assert is the most significant addition to California’s water protection code in a century.

Brown’s jubilance appeared justified in a dry, fast-growing, 165-year-old state that relies on prodigious volumes of freshwater from aquifers for its water supply, doesn’t really know how much water lies underground, and where leaders that sought changes to oversee the resource were subject to intense opposition.

Brown, himself, was one of the victims. During a drought in 1977, in his first term as governor, Brown appointed a commission to review the state’s water laws. The recommended protections for groundwater were not implemented. Lawmakers and the powerful agricultural sector did not feel the urgency to act.

The recent groundwater act is an attempt to change the course. The state’s drought emergency and record-low aquifer levels provided Brown with the political cushion necessary to push through the first statewide safeguards for aquifers, making California the last western state to adopt a regulatory system for groundwater.

But while Brown and other state leaders view the new law as a breakthrough in policy, it is not at all assured that building a new regulatory infrastructure to sustain California’s groundwater reserves will be a triumph of practice. The law’s requirements to establish local water oversight boards are complex and detailed. Moreover, the ultimate deadline for meeting the law’s major goal of much more cautiously consuming groundwater doesn’t need to be met until 2040, when California’s population is projected to reach 50 million residents, 11 million more than today. In almost every way, putting the groundwater law into effect is a 21st century test of a state’s capacity to respond to new and urgent ecological and economic conditions.

A year after the act’s passage, Californians have put aside lingering skepticism and are busy putting the text into action. Water managers, county supervisors, city and state officials, irrigation districts, and a bevy of other interested parties are scurrying to meet a cascade of deadlines that were laid out in the statute: deadlines for confirming the boundaries of their groundwater basins, for forming new agencies that will be tasked with overseeing water withdrawals from local aquifers, and for writing the management plans that will guide groundwater use for the next 25 years in the state’s major cities and farming centers.

To watch the process unfold is to witness the foundations of democracy. The same questions that Hamilton, Jefferson, and Madison argued about and debated more than two centuries ago are now echoing in city council chambers and public forums from Clovis to Salinas. Who gets a seat at the table? Who gets to vote? How much is their vote worth? How will fees be collected? Who must pay for projects that reduce groundwater use or increase supply? How much will they pay?

With the law, California is, in effect, creating micro-states for groundwater, instituting new political divisions that are set, loosely, on basin boundaries, much as John Wesley Powell advocated, in 1890, for watersheds, as a way to govern the entire American West.

Crafting the fresh institutions that will oversee groundwater is contentious, tedious work, filled with late night meetings, mediators, technical details about geology and hydrology, and discussions about the nature of governance. The act — a two-step process that was designed to pull California groundwater regulation out of the hydrologic Dark Ages — forces agencies that may never have collaborated to agree to a long-term vision for water supply and availability.

First, the 127 groundwater basins that are covered by the law must form a Groundwater Sustainability Agency (GSA) that will have the power to measure and monitor groundwater use, levy fees on users, set standards for new wells, and enforce compliance with the law. The deadline to form an agency is June 30, 2017.

Second, the GSAs, once formed, must write sustainability plans that will balance water withdrawals with inflows by 2040. The plans are due in 2020 or 2022, depending on the severity of groundwater depletion in a basin. The state will evaluate the plans to ensure that they meet minimum criteria, but the local agencies, as they lobbied for, are in the captain’s seat.

“When the groundwater act was created, the watch phrase was ‘local control’,” Andrew Fisher, a University of California, Santa Cruz, scientist who studies groundwater, told Circle of Blue. “The legislation was vague on the details. It said nothing about what a groundwater agency looks like. Now people are scratching their heads. They have to figure out how to form one and how to fund one. It’s not quite clear how to do that. It’s going to be an interesting 20 years.”

Agency Formation Depends on Local Relationships

Forming a GSA is straightforward in some areas. The legislation authorizes 15 existing water agencies to become the GSA in their jurisdiction. They are all special districts that were previously established by the Legislature to manage groundwater.

“We’ve been given a pass card,” Mary Bannister, general manager of Pajaro Valley Water Management Agency, told Circle of Blue. By that, Bannister means that Pajaro Valley, one of the districts named in the act, is ahead of the game. Its boundaries, function, and purpose have already been legally defined and they were confirmed during an August board meeting. The agency can move to step two: writing a sustainability plan.

The rest of the state is still on step one: forming a GSA. In most cases, the agencies that will regulate groundwater use are being created from scratch, stitched together from the fabric of existing institutions.