Academic journal article Environmental Law

A Dry Century in California: Climate Change, Groundwater, and a Science-Based Approach for Preserving the Unseen Commons

Academic journal article Environmental Law

A Dry Century in California: Climate Change, Groundwater, and a Science-Based Approach for Preserving the Unseen Commons

Article excerpt

I.   INTRODUCTION II.  GROUNDWATER MANAGEMENT IN CALIFORNIA: AN HISTORICAL      OVERVIEW III. THE CALIFORNIA SUSTAINABLE GROUNDWATER MANAGEMENT ACT IV.  BEYOND THE STATUTE: A VISION FOR SCIENCE-BASED GROUNDWATER      MANAGEMENT IN CALIFORNIA      A. Local Groundwater Management is Suited to the Physical         Geography of the Resource      B. Mandating Numeric Standards for Groundwater Levels      C. Acquiring Additional Hydrological Data for California's         Aquifers V.   CONCLUSION 

I. INTRODUCTION

There is yet another drought in California now, this one among the most severe in its history. (1) Around the many reports of dire facts and figures, and anecdotes of personal hardships, it is still possible to find the optimism that once consistently prevailed during such times--a notion that the weather reliably runs in cycles, and that better, wetter days are coming soon. (2) But as the dry months turn into years, with little respite apparently in sight, a more sober sensibility is also taking hold. (3) The warnings of the scientists are becoming difficult to ignore, and they have penetrated the public consciousness: no matter where you are, the climate is moving away from what you are used to. (4) And in the most populous parts of California, almost every climate model, every data-based prediction about the next century says that it is going to be getting ever drier. (5) The scientists' message has finally become loud enough to penetrate even the deafest of communities: the Sacramento legislature. After decades of inaction while all of the other Western states adopted comprehensive plans for managing their groundwater, this body has at last responded by passing its own Sustainable Groundwater Management Act (SGMA), (6) which became law on January 1, 2015. (7)

The SGMA indeed opens new possibilities for conservation of the crucial groundwater resource, which is presently providing over fifty percent of the freshwater used in the state. (8) The Act creates new local agencies charged with protecting against groundwater depletion or other damage to the long-term viability of the resource, and confers substantial authority to enable execution of this goal. (9) It establishes a priority system to first manage those regions that are presently experiencing the severest shortfalls, effectively leveraging the emerging database of basin-specific groundwater levels created by the California Statewide Groundwater Elevation Monitoring (CASGEM) program in the Department of Water Resources (DWR). (10) And it strikes all the right chords in its comprehensive documentation of the many "undesirable results" to be avoided: chronic lowering of groundwater levels, impaired groundwater quality, seawater intrusion into aquifers, subsidence of surface land, and adverse impacts on hydrologically connected surface waters. (11)

The SGMA is surely a significant, long overdue step in California's ongoing saga to properly manage and conserve its freshwater resources. And yet, as presently formulated, it is very unlikely that the legislature has accomplished its stated goal to manage groundwater "sustainably for long-term reliability and multiple economic, social, and environmental benefits for current and future beneficial uses." (12) The problems arise because, rather than mandating the achievement and maintenance of well defined groundwater levels in its most stressed basins, lawmakers have instead taken refuge in the nebulous concept of "sustainable yield." (13) Further, by relying on a narrative standard that interprets compliance in terms of avoiding "significant and unreasonable" undesirable results, (14) the Legislature is providing little guidance to the agency that will actually administer the law, while also increasing the likelihood that difficult decisions will be made by the courts.

In this Article, I suggest that the general framework of the statute is sound in its reliance on local authorities to sustainably manage groundwaters, but that the law must be amended--or regulations implemented by the State Water Resources Control Board (SWRCB) (15)--to replace the existing narrative standards with mandated, numerical criteria specifying defined levels of groundwater to be retained in each individual basin. …

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