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The Role of Counties in Groundwater Management

By Thomas S. Bunn III

This article addresses how county ordinances can be part of an overall groundwater management effort and how counties, cities and water agencies can work together with other interested parties to accomplish common objectives.

Throughout California, counties have become increasingly involved in groundwater management. At least 10 counties have adopted groundwater ordinances and several more are considering doing so. At the same time, many local water agencies have begun developing and implementing groundwater management plans.

Groundwater is a vital part of our state's water supply, especially in times of drought when surface water supplies are reduced. Groundwater is the sole source of supply for many communities and many others use it as their principal source of supply. Groundwater basins are increasingly viewed as a good place to store water during times of abundant supply because their storage capacity is much greater than that of surface reservoirs and they avoid some of the economic and environmental problems associated with surface reservoirs.

At the same time, reliance on groundwater has led to a number of problems and concerns, including overdraft. Overdraft occurs when the use of groundwater from a groundwater basin exceeds the long-term supply to that basin, resulting in increased pumping lifts, potential subsidence, degradation of water quality and eventual depletion of the supply. A second concern is that of protection from contamination by human activity. The impact on our groundwater of past industrial activities and leaking underground fuel tanks, among other things, has only recently become known.

Another concern arises from the fact that we can't see underground water. Virtually everything we know about the resource is by inference. That may be one reason for the development of separate bodies of law for groundwater and surface water. In 1861, an Ohio court phrased the problem this way: "Because the existence, origin, movement and course of such waters, and the causes which govern and direct their movement, are so secret, occult and concealed, an attempt to administer any set of legal rules in respect to them would be therefore, practically impossible."

We know a lot more about hydrology than we did in 1861, but we still don't know everything about every groundwater basin in the state. Since every groundwater basin is unique, the acquisition of data is a serious concern.

The state does not regulate groundwater in the way it regulates surface water. In fact, there is no regulation of groundwater production at all on the state level. Traditionally, the only permit required in order to pump groundwater was a permit from the county to drill the well. But the well ordinances addressed only how the well was constructed, not how much water was extracted.

In recent years, it has become commonly accepted that some kind of groundwater management is necessary for every groundwater basin in the state- at least to the extent of ongoing data gathering and characterization of the basin. Many people believe that the nature and extent of groundwater management should be separately determined for every basin in the state and that local control over groundwater management is therefore preferable to a state-wide, "one-size-fits-all" approach. In other words, the best people to decide what kind of management is necessary are the local stakeholders

Groundwater Management

Groundwater management is nothing more than planned use of the groundwater resource in a way that protects its quality and quantity. To do that effectively, one must start with data collection and monitoring.

In its California Water Plan Update, the California Department of Water Resources said that local groundwater management programs should have the following goals:

Cooperative agreements among the major water producers within a basin.
Formation of special districts such as water replenishment districts, whose powers include management and replenishment of groundwater supplies and imposition of pump taxes.
Creation by the legislature of special act management agencies to manage particular groundwater basins.
Management by watermasters, as part of "physical solutions" in water rights adjudications.

More recently, counties and cities have begun to use ordinances as a means of managing the groundwater resources within their boundaries. And the enactment in 1992 of the Groundwater Management Act (AB3030) has allowed local agencies providing water service to adopt groundwater management plans covering all or a portion of their service areas.

The Legislature, in adopting AB3030, expressly declared its intent "to encourage local agencies to work cooperatively to manage groundwater resources within their jurisdictions." In furtherance of this intent, AB3030 authorizes local agencies to adopt a coordinated groundwater management plan with other local agencies and to enter into agreements with public agencies and private parties for the purpose of implementing a coordinated groundwater management plan. In addition, the law requires local agencies within the same groundwater basin and cities and counties with groundwater ordinances to meet at least annually to coordinate their programs.

Many local agencies developing groundwater management plans under AB3030 have taken the principle of cooperation even further. They have developed a process by which all interested stakeholders- not just other agencies managing groundwater - are included in the decision-making. These agencies recognize that public education and involvement is key to a successful management program.

Task Force

In 1994, an appellate court decision, Baldwin vs. County of Tehama, affirmed the power of counties - and, by analogy, cities - to enact groundwater ordinances (see "Groundwater Regulation after Baldwin vs. County of Tehama," California County, March/April 1996). Although the court held that the police power to regulate groundwater was not pre-empted by AB3030 or other state law, it did not specify how groundwater management plans and groundwater ordinances would interact. After Baldwin, the question became: What should be the roles of counties and cities, on the one hand, and local water agencies, on the other, in groundwater management?

To begin to answer that question, a task force was set up consisting of representatives from CSAC, the Association of California Water Agencies (ACWA) and the League of California Cities. The purpose of the task force was to determine the goals of each group with respect to groundwater management and identify ways to work together to accomplish the common objective of protecting local groundwater supplies.

When the task force began identifying goals of each group, it found that most of the goals were shared by all the parties. The most important goals were protection of the long-term supply, local control over water management decisions and stakeholder involvement in decision-making.

At the same time, the task force came to recognize that counties, cities and water agencies brought different things to the table with respect to groundwater management. Water agencies are better able to focus on overall planning, but their enforcement power is limited. Water agencies may also be better able to obtain sources of funding for projects. Counties and cities, by virtue of their police power, are better able to address regulatory issues and to take enforcement action.

The task force also realized that there are some concerns and fears on the part of each group about the potential activities of the others. The task force is in the process of identifying those concerns and fears and beginning to deal with them.

Finally, the task force determined that water agencies, counties and cities can be important resources for each other. To be effective, local groundwater management must be built upon the available data regarding the characteristics of the particular basin. In some basins, a local water agency might have a large store of data which can be made available to the county. In others, the county might have collected the data. Water agencies, cities and counties can help educate both decision-makers and the general public about the need for protection of the groundwater supply and the methods available for groundwater management. Financial resources may be used for public works projects, such as spreading basins, necessary for the effective management of groundwater.

Coordinated Management

What if a county wants to establish a permit process for the export of groundwater rather than implement a comprehensive management program? Remember that the ultimate goal of that permit process is to protect the local groundwater resource. Coordination of a county's groundwater ordinance with the local water agencies' groundwater management plans is the best way to accomplish that goal.

First, coordinated management ensures that all aspects of basin management are taken into account. Second, coordinated management ensures that stakeholders are represented in the process - an important factor in the success of the program. Third, coordinated management may make the county ordinance less subject to legal challenge.

The initiative ordinance rejected by voters in Butte County last November demonstrates the need to keep all the stakeholders involved in groundwater management.

The Butte Basin Water Users Association had been in existence several years and was working toward a management plan for the basin when the initiative was proposed by independent water users. The association included most, but not all, of the principal stakeholders - all the water agencies overlying the basin, Butte County, two cities, a private water service company and a group of private landowners.

The initiative attempted to pre-empt the process with an ordinance aimed at keeping the water table at its historic level. Opponents of the measure, including the association and Butte County, charged that the ordinance:

Used recitals copied from another county which were not appropriate for Butte County.
Destroyed opportunities for conjunctive use of surface water and groundwater, and limited future use of the resource.
Established a water commission that was not representative.
After much controversy, the measure failed and an alternative ordinance acceptable to the Butte Basin Water Users Association and the county was passed.

Local groundwater management is essential for the preservation of this statewide resource. Like it or not, counties will be involved in groundwater management - either when asked to adopt an ordinance or when brought into the process as an interested stakeholder.

Thomas S. Bunn III is an attorney with the Pasadena law firm of Lagerlof, Senecal, Gosney & Kruse, LLP and the chair of the subcommittee on groundwater management and groundwater ordinances of Association California Water Agencies.