As water crisis deepens, California finally passes groundwater regulation

Grapevines march across wires strung along rolling hills, their little trunks improbably supporting heavy black fruit. Cindy Steinbeck’s family has been farming this land in central California since 1920. The family grows zinfandel, viognier, cabernet, merlot and petite syrah grapes, and is best known for a blend called The Crash, named after a remarkable incident in 1956, when a B-26 crash-landed 200 yards from the family home. Four of the five Air Force men aboard survived, bailing out in the nearby fields.

Now a new crash threatens, as groundwater levels beneath the vineyards plummet. Amid one of the worst droughts ever recorded ­­– with more than 80% of the state in extreme or exceptional drought – Steinbeck Vineyards’ 520 acres of grapes have been growing well, thanks to the family’s access to up to 2 acre-feet ­– about 652,000 gallons – of groundwater per acre per season. The Steinbecks have been able to tap this subterranean resource at will from the Paso Robles groundwater basin because they own the land above it — and because California, which produces nearly half of US-grown fruits, nuts and vegetables, is the only western state without groundwater regulation.

But that boon to farmers is also a looming disaster. Groundwater makes up a huge piece of the state’s water supply, meeting approximately 40% of its water demands in an average year and 60% or more during droughts, according to the state’s water resources department. And groundwater is part of a larger hydrological system: excessive groundwater pumping can empty aquifers faster than natural systems can replenish them; dry up nearby wells; allow saltwater intrusion; and draw down water supplies from rivers, lakes and streams. Taking so much water out of the soil can cause the dirt to compact and the land to sink, an action called subsidence. Land can subside as much as a foot a year in the face of aggressive pumping, destroying infrastructure such as irrigation canals, building foundations, roads, bridges and pipelines.

“In the absence of governance, it’s become a pumping arms race,” said Felicia Marcus, chair of the State Water Resources Control Board. “He with the biggest pump or deepest straw wins.”

Now, California looks set to regulate groundwater for the first time. The state senate and assembly last week passed two bills, SB-1168 and AB-1739, authorizing local agencies to manage groundwater. Governor Jerry Brown has 30 days to sign the bills into law, and his approval seems likely, as he has supported the bills throughout the process.

The Association of California Water Agencies, a water-utilities trade group, and the California Water Foundation, a nonprofit focused on balancing California’s water needs, support the new bills.

But the California Farm Bureau Federation opposes them. Danny Merkley, director of water resources for the federation, attributed groundwater supply problems not to lack of regulation, but to “inflexible, outdated environmental policies” as well as population growth and climate change.
“Groundwater management must protect the property rights of overlying landowners,” he said. “Otherwise, there could be huge, long-term economic impacts on farms because of the potential to devalue land.”

Neighbors suing neighbors

Even if the approved bills become law, change could come slowly. Groundwater basins would have two years to form a local management agency, five years to adopt a sustainable management plan and 20 years to achieve a sustainable supply of groundwater.

It’s also unclear whether the law, if approved, would help end the current spate of neighbors suing neighbors. Suing has become standard practice in California when groundwater basins are overdrafted. In these cases, a court decides who may extract how much and who will manage the basin to ensure everyone is using water according to the court’s decree, a process called adjudication.

The state already has 22 adjudicated groundwater basins, according to the water resources department. Adjudication can be time-consuming and expensive for all concerned. According to the San Luis Obispo County website, for example, the Santa Maria Groundwater adjudication “is now going on its 12th year and is still in court appeals”, with a total cost of $11m and climbing.

Landowners, including Steinbeck, who have historically considered water beneath their land to be part of their property rights in California, filed suit last fall against San Luis Obispo County and four municipal water companies. This summer, this and a related lawsuit have recently been transferred to San Jose, a city to the north — because everyone agrees that locals can’t be impartial.

The Paso Robles groundwater basin has been declining for years, said San Luis Obispo County board of supervisors chair Bruce Gibson, but “the drought has magnified the effect.” When wells began to dry up last summer, the board passed a moratorium on new water use in the basin.

While Steinbeck sees any limitation of her family’s ability to pump and use the water under its land as “taking over our rights”, Gibson says property rights aren’t absolute. “One can do a range of activities on their property as long as it doesn’t infringe on others’ similar enjoyment of their property,” he said.

As California assemblyman Roger Dickinson, author of the assembly bill, puts it: the property rights narrative for groundwater rights “is called into question if your neighbor pumps out so much water that your well runs dry”.

Part of the problem is it’s unclear how much everyone is pumping: the state doesn’t require groundwater supplies or pumping rates to be measured today. The recently passed bill, though, would require each groundwater basin to report everyone’s pumping quantities and depth of groundwater each year, as well as to set specific objectives for stabilizing the water level at a certain elevation. As Felicia Marcus, chair of the state water board, put it: “We didn’t require meters, but we’re requiring the adequate ability to monitor.”

It’s a surprisingly contentious issue. The challenge to metering groundwater “is not technological; it’s political”, said Peter Gleick, cofounder of the Pacific Institute, an independent research organization focused on water issues. “There are certain people who benefit enormously from a lack of information and inefficiency – and those people have lawyers.”

How did we get here?

The current groundwater crisis is part of a bigger problem. The state’s existing water laws “were never designed to deal with the challenges California now faces,” said Mike Young, who holds a research chair in water and environmental policy at the University of Adelaide in Australia.

Young speaks from experience. He played a key role in developing improved water entitlement, allocation and trading systems in Australia and won a national award for his efforts. Ultimately, he said, California needs that type of radical reform.

For one thing, like many places experiencing water stress around the world, California is using water inefficiently. “We really need to think about the demand side of the equation more than the supply side,” Gleick said. Opacity of water rights, unmeasured usage and laws with perverse incentives enable waste.

California’s water rights laws are based on seniority, and in many years, there are more rights to water than actual water. “There are a lot of water claims out there and we don’t have a fully adjudicated system,” Marcus said. In fact, the state has allocated five times more surface water than the state actually has, according to a new University of California at Davis report.

It’s unclear how much water some rights holders can take out, said Brian Gray, a law professor at the University of California at Hastings. For example, the most senior water rights – called riparian – are “not quantified”, he said.

Also, the law has long encouraged waste. It requires water to be put to “reasonable and beneficial use”, which includes supplying cities, industry, irrigation, hydroelectric generation, livestock watering, recreation, and fish and wildlife habitat. “Reasonable use” sounds … well, reasonable, but a “use it or lose it” clause incentivizes profligate use: if you don’t use your historic water allocation in a beneficial way, you forfeit your water rights, Gray said.

In addition, today farmers aren’t able to sell the water they don’t use or save the unused water for next year, said Thad Bettner, general manager of the Glenn Colusa Irrigation District. “We use what we can use and that’s it,” he said.

That’s ridiculous, Young said, adding that farmers should be rewarded – not penalized – for conservation.

Courts also should adjudicate the basins and convert all of the water rights into shares, eliminating the problem of overdrafting a watershed, he said. “You cannot give anybody a guaranteed volume,” he said.

The future’s at stake

Getting groundwater policy right will become increasingly important as climate change advances, potentially reducing snowpack – which has acted as a handy storehouse in California, holding winter water and releasing it slowly into summer – by 70% to 90% (pdf).

More reservoirs, which the Farm Bureau advocates, won’t be enough to make up the loss, Marcus said, adding the biggest opportunity for new storage is groundwater basins, she said. The goal of the new bills is not to just stop groundwater depletion, but to create incentives to replenish these underground basins and keep them full as a water management tool.

If we use groundwater basins intelligently, we can make up for snowpack by getting our act together now, she said. “It’s the state’s future at stake.”

This is a condensed version of an article produced by Climate Confidential and released for re-use under a Creative Commons Attribution 4.0 International License. You can read the full version here.

Erica Gies is an independent reporter who covers water and energy for The New York Times, The Economist, Scientific American and other publications.

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