Liquid Assets: Improving Management of the State's Groundwater Resources

Liquid Assets: Improving Management of the State’s Groundwater Resources M AC TAylor • l e g i s l A T i v e A n A l y s T • M A rCh 24, 2010 an LaO RepORt 2 LegisLative anaLyst’s Office an LaO RepORt ExEcutivE Summary California’s water system is facing a series of challenges affecting water availability, reliabil- ity, and delivery. Groundwater management is one of the state’s most critical liquid assets—a key component of both local and statewide efforts to better manage water supply and water quality in the state. This report builds upon our previous 2008 publication, California’s Water: An LAO Primer, in which we provided an overview of California’s water system and related legislative policy considerations, including issues related to groundwater. Our focus and pri- mary goal of this report is to outline ways that groundwater management could be improved from a statewide perspective in a way that builds on recent legislative efforts to address this subject area and, to the extent possible, maintains local control over day-to-day management of groundwater systems. In our view, reevaluating how groundwater is managed is necessary if it is to achieve its full potential as a reliable source of water. In this report, we (1) provide more background on the state’s current approach to groundwater management; (2) address current issues with ground- water management, including the impact of water quality on water supply; (3) address the dis- connect between the law and science of groundwater; and (4) review other states’ approaches to groundwater management. We also present the Legislature with a series of actions that would be phased in over a period of time to address current and emerging groundwater management issues. In particular, we recommend that the Legislature: ➢ Phase in a more comprehensive groundwater monitoring system to allow the state to focus funding and technical assistance efforts in the areas of greatest need. ➢ Establish Active Management Areas (a defined geographic area where specific rules are established to govern the withdrawal and use of groundwater), in circumstances where groundwater overdraft potential or the extent of pollution problems are the highest. ➢ Bring science and law together to modernize groundwater law to accurately reflect the physical interconnection of surface water and groundwater. ➢ Consider phasing in statewide groundwater permitting over a multiyear period, based on data from expanded monitoring requirements, while maintaining local control over implementation of permitting to the extent possible. LegisLative anaLyst’s Office 3 an LaO RepORt 4 LegisLative anaLyst’s Office an LaO RepORt Background Water System Facing Challenges— ter management and monitoring. This report will Groundwater Part of the Solution lay out issues affecting both local and statewide water supply and suggest methods to strengthen California’s Water System Facing Challenges. local groundwater management. Our approach is California’s water delivery system is facing a series consistent with the Legislature’s expressed desire of challenges due in part to a combination of to retain some level of local control over ground- increasingly variable weather conditions, legal water management, while allowing the state to requirements, and system operation and convey- intervene when problems go beyond the capa- ance constraints. These challenges affect water bilities of local authorities, or when the impact of availability, reliability, and delivery. Recent public problems in the groundwater basin is regional in and private efforts have sought ways to address nature. We recommend that the retention of lo- these challenges. These measures include propos- cal control be combined with improved account- als for groundwater storage, surface storage, in- ability for local management actions. frastructure changes, system operation improve- In reviewing groundwater management is- ments, and water recycling, among others. sues, we interviewed a broad range of interested Building on Prior LAO Groundwater Rec- parties, including the staff of state, local, and ommendations. This report builds on our 2008 federal agencies that have a role in the regula- publication, California’s Water: An LAO Primer, tion and/or management of water; private water in which we provided an overview of California’s developers and consultants; members of the pub- water governance, supply, demand, costs, and lic; and researchers with expertise in the subject, financing. In that primer, we introduced several including the Water Education Foundation. We issues for legislative consideration, including a also reviewed relevant state law, local regula- recommendation to reevaluate how groundwa- tions, case studies, and federal agency activities. ter is regulated and managed in the state. In our view, such reevaluation is necessary if ground- What Is Groundwater and water is to fully serve its potential as a reliable Why Is it Important? source of water supply. In this report, we further Groundwater is the portion of water from develop this policy approach and offer specific precipitation that does not run into surface recommendations for legislative action. Our rec- streams but rather infiltrates (either naturally or ommendations were informed by our review of deliberately) under the surface of the ground. In groundwater management success stories in local a sense, all groundwater starts as some form of areas of the state and in other western states. surface water, meaning that the two types of wa- Local Control Essential—With Account- ter are integrally connected. Much like a sponge, ability. In many areas of the state, local agencies the ground, depending on soil type, soaks up the are the first to notice and deal with groundwater groundwater into basins available for use. This problems—from water quality issues to supply can happen over a period ranging from several challenges. As we will discuss, a number of local years to over a millennium in some cases. Areas areas of the state provide models for groundwa- LegisLative anaLyst’s Office 5 an LaO RepORt where groundwater is present or saturated are as shown in Figure 2. However, in dry years, called aquifers, which generally have boundaries projected demand by category of use will exceed defined as basins. As water is drawn out of these the available supply in 2030 in most cases. It is basins, via wells or seepage into surface streams, for these dry cycles that the state must plan to groundwater availability can be reduced. ensure a reliable water supply. Groundwater Is a Major Contributor to Groundwater Is an Important Contributor State’s Water Supply. Groundwater supplies to Water Reliability Solutions. There are several about 30 percent of California’s overall dedicated options available to the state to ensure that, during water supplies in average precipitation years, as the driest years, disruptions from water shortages shown in Figure 1. In dry years, this increases are minimized on a statewide basis. The DWR statewide to about 40 percent. This is because has analyzed a number of short- and long-term when surface water supplies are restricted, both options to strengthen water supply reliability local water agencies and irrigators (farmers) throughout the state, as shown in Figure 3 (see increase groundwater pumping to meet water page 8). The options presented in the figure gener- supply needs. At least 43 percent of Californians ally involve reducing water demand or increasing obtain at least a portion of their drinking water water supplies. They also vary in their potential to annually from groundwater sources. produce additional water. Basic groundwater re- During years where surface water deliveries plenishment is considered a solution that generally are not available and rainfall is scarce, groundwa- can be developed in the short term, potentially ter may provide up to 100 percent of irrigation Figure 1 water for certain areas. In Groundwater Is Major Contributor to California’s some areas where surface Water Supply, More So in Dry Years supplies are not accessible or economically feasible, 100% groundwater provides 90 100 percent of a commu- 21% nity’s public water. 80 29% 39% Future Water Sup- 70 ply Reliability Uncer- 60 tain. The Department of 50 Water Resources (DWR) projects that the state is 40 likely to have an ad- 30 equate water supply in Groundwater 20 the aggregate to meet its All Other Developed Water Supply water demands in aver- 10 age precipitation years under current trends Wet Year Average Year Dry Year 6 LegisLative anaLyst’s Office an LaO RepORt providing significant additional water supplies over Key Groundwater Laws time. The related options of brackish desalination Key Laws Governing Groundwater Focus on (the desalting of either groundwater or reused wa- Water Quality, Local Management. Groundwa- ter) as well as water recycling (re-use of water after ter is mainly managed at a local level, but several treatment which may include reintroduction to state laws govern how locals are to manage this the groundwater system) are also key water supply resource. In general, groundwater law at the state reliability solutions to which the management of level can be categorized in two ways: groundwater contributes. (1) laws that support and Figure 2 provide incentives for Supply and Demand Projected to Be Nearly local management or Equal Under Average-Year Conditions in 2030... (2) laws designed to pro- tect and monitor ground- (Million Acre-Feet) water quality. Figure 4 90 (see page 9) lists selected 80 Current Developed Water Supply (Average Year)a key state laws governing 70 Projected Demand groundwater. This list 60 (Current Trends) 2030b includes recent legisla- 50 tion, approved as part of 40 a package of proposals to 30 address the state’s water 20 problems, to enhance 10 groundwater monitor- Urban Agricultural Environmental All Water Uses ing and reporting. We discuss some of these ...But Dry-Year Demand Projected to key laws in further detail Exceed Supply below. 90 “AB 3030”—Vol- 80 Current Developed Water Supply untary Approach to (Dry Year)a 70 Groundwater Manage- Projected Demand 60 (Current Trends) 2030b ment. Law enacted in 50 1992 (commonly referred 40 to as AB 3030), allows 30 local governments to cre- 20 ate groundwater manage- 10 ment districts and gives the districts the authority Urban Agricultural Environmental All Water Uses to raise fee revenues to aDeveloped water supply is the amount of precipitation, surface water, or groundwater made pay for management of available for use, generally through construction of storage or delivery systems. bDemand projections from Department of Water Resources, 2005 California Water Plan. the groundwater. Of the LegisLative anaLyst’s Office 7 an LaO RepORt 10,000 public water systems in the state (at least receiving state water grants and loans when 15 service connections), less than 1,000 are water certain local agencies do not conduct required districts that are eligible to form groundwater dis- monitoring. As part of the package, an $11.1 bil- tricts. Under the initial version of this legislation, lion bond measure was passed by the Legislature districts submit groundwater management plans which includes $1 billion specifically for ground- to DWR. However, beyond using these plans for water supply and quality. There is potential general water planning, the department’s role was additional funding for groundwater management extremely limited. Subsequent legislation required in various other provisions of the bond measure. the department to report on which districts had This measure has been placed on the November completed AB 3030 plans. (Over 140 such plans 2010 ballot. have been submitted to DWR.) Managing Groundwater— SBX7 6—2009 Water and Groundwater State Law, Local Rules Legislation Package. A series of legislative bills en- acted in the 2009 session attempted a comprehen- State Has No Statewide Groundwater Use sive reform of California’s water policy. While the Permitting System. As further discussed later in focus of the package was on addressing problems this report, California is one of two western states in the Sacramento-San Joaquin River Delta system, without a comprehensive state-managed ground- one bill was wholly dedicated to groundwater. water use permitting system (also sometimes Chapter 1, Statutes of 2009 (SBX7 6, Steinberg), referred to as a groundwater rights system). In requires monitoring and public reporting of Figure 3 groundwater elevations in Groundwater: A Key Option for Additional Water Supply all groundwater basins in (Million Acre-Feet Per Year) California. Local agencies 2.5 are required to conduct Shorter Term Longer Term the monitoring, which 2.0 will then be reported Additional Annual Water to DWR. The depart- Potentiala (Median) ment is then required 1.5 to report periodically on the status of ground- 1.0 water across the state, including these reported 0.5 elevations, in a public report. As an incentive to enforce compliance Agricultural Groundwater Urban Surface Ocean and Recycled Water Use Storageb Water Use Storage Brackish Municipal with this monitoring Efficiency Efficiency (CALFED) Desalination Water requirement, the legisla- aReflects the midrange of estimates of water supply development potential of particular solutions, Department of Water Resources, California Water Plan 2005. tion bars counties from bIncludes integrated management of groundwater and surface water. 8 LegisLative anaLyst’s Office an LaO RepORt California, landowners are in general entitled to local ordinances operate to limit groundwater the reasonable use of groundwater on property transfers out of the local area, for example, by overlying the groundwater basin. In contrast, the pumping groundwater and moving it through state’s surface water generally is not an entitle- canals or rivers to another area. Also, local rules ment—surface water rights generally are appro- may limit the ability to transfer surface water to priated through a state-administered permitting another area because this in turn could increase system. the use of groundwater to the detriment of other Court Adjudications and Local Regulations. groundwater users. Finally, local areas are begin- Groundwater rights in some parts of the state ning to limit certain types of water uses, including (mainly in urban Southern California) have been for bottled water, where the sole purpose is to ex- adjudicated in the courts. Elsewhere, ground- port the water out of the local government area. water use is regulated on an ad-hoc basis by a State Supports Local Groundwater Manage- disparate group of local agencies. These agencies ment, Including Water Quality Improvement. include local districts with statutory authority to As discussed in more detail below, while the manage groundwater (such as water conservation state does not directly regulate groundwater districts), local water agencies that have adopted use, it has taken some steps to encourage local groundwater management plans pursuant to groundwater management. This is done mainly statute, and cities and counties that have adopted through financial incentives, including bond- local groundwater ordinances. funded and federally funded local assistance Local Rules to Protect Local Water. Local programs for water-related purposes that could groundwater ordinances are largely designed to include groundwater-related projects. For ex- protect the availability of water supplies to users ample, the State Clean Water Revolving Loan within the local jurisdiction. In general, these Fund, a fund seeded with federal funds and most Figure 4 Selected Key State Laws Governing Groundwater Support/Incentives for Protect or Monitor Law Name or Purpose Local Management Groundwater Quality Porter-Cologne Water Quality Act (1969) X The Pesticide Contamination Prevention Act of 1985 X Local Groundwater Management Act of 1992 (AB 3030) X Local Groundwater Management Assistance Act of 2000 (AB 303) X Groundwater Quality Monitoring Act of 2001 X Amendment to Land Use Laws—2001 (SB 221) X Amendment to the Urban Water Management Act—2001 (SB 610) X Groundwater Management Water Code Amendment—2002 (SB 1938) X Groundwater Monitoring—2009 (SBX7 6) X X LegisLative anaLyst’s Office 9 an LaO RepORt recently augmented by funding from the federal systematically monitor groundwater than surface American Recovery and Reinvestment Act of water. However, this situation is also to the result 2009, provides low-interest loans to water agen- of jurisdictional issues where the state is unable cies to improve water treatment and wastewater to conduct monitoring on private property with- facilities. A similar fund for public drinking water out permission. The most comprehensive water systems is operated by the Department of Public quality monitoring required by the state is done Health (DPH). Both of these funding sources can by DPH through its drinking water monitoring be used for groundwater management projects. programs. Many state financial incentive programs State and Federal Agency relevant to groundwater are jointly operated by Roles in Groundwater multiple state agencies. For example, the Inte- grated Regional Water Management Program, Many State Agencies Involved in Groundwa- which provides financial and technical assistance ter. While the state has encouraged local man- to local agencies to increase water supply in part agement of groundwater, several state agencies through the cleanup and removal of contami- have roles and responsibilities related to ground- nated water in groundwater basins, is jointly ad- water management. Figure 5 lists state agencies ministered by the State Water Resources Control involved with groundwater management and their Board (SWRCB) and DWR. general roles. Although groundwater manage- The state regulates water quality through pol- ment is not the primary mission of any state agen- lution discharge permits (issued by SWRCB) and cy, many have been assigned significant tasks various industry-specific programs. However, in this area, including monitoring water supply, groundwater quality is not protected under state regulating water quality, developing science and regulation and enforcement to the same extent monitoring, cleanup of groundwater contamina- as surface water quality. This is in part due to the tion, and local financial and technical assistance. nature of groundwater, as it is more difficult to The DPH enforces drinking water standards, Figure 5 Many State Agencies Are Involved in Groundwater Regulate to Science Local Water Protect Water and Financial Supply Quality Monitoring Cleanup Assistance California Public Utilities Commission X X Department of Food and Agriculture X X Department of Pesticide Regulation X X Department of Public Health X X X Department of Toxic Substances Control X X X X Department of Water Resources X X X Integrated Waste Management Board X Office of Environmental Health Hazard X Assessment Pollution Control Financing Authority X State Water Resources Control Board X X X X 10 LegisLative anaLyst’s Office an LaO RepORt which apply to all drinking water sources, includ- U.S. Geological Survey published a compre- ing groundwater. (For more information on DPH’s hensive report on groundwater overdraft (the role in this area, see the box on page 14.) withdrawal of water at a rate faster than the basin Federal Government—A Limited Direct is able to recharge) in the Central San Joaquin Regulatory Role. The federal government does Valley, providing key technical information for not directly administer programs to regulate the groundwater users and planners in the area. In quality of groundwater as it does with surface addition, direct spending by federal agencies water under the U.S. Clean Water Act. In most has included between $3 million and $5 million cases, administration of federal water quality per year over the past five years for groundwa- responsibilities has been delegated to the state, ter cleanups. This includes funding to clean up such as for implementing federal safe drinking leaking underground storage tanks. In addition, water standards. Figure 6 provides more detailed the federal government has appropriated funding information on the three key federal agencies in- for federal defense site cleanups, groundwater volved with groundwater management in Califor- elevation monitoring by the National Aeronautic nia and their role in groundwater regulation. and Space Administration, and for various techni- Federal Direct Spending and Programs cal groundwater studies conducted by the U.S. Nonetheless Important. Federal legislation Geological Survey. and federal agencies have, however, played an State Funding for important role in supporting California ground- Groundwater Programs water management through technical and finan- cial assistance and through direct groundwater Separating Groundwater Expenditures Dif- cleanup programs. For example, in 2009, the ficult. As discussed earlier, many agencies work on groundwater (and related drinking water) Figure 6 issues. However, much Key Federal Agencies and Roles of this work is done in Agency Role conjunction with other U.S. Environmental Works with California Department of Public Health programs. For example, Protection Agency to ensure that groundwater drinking water supply sources comply with mandated federal drink- a program addressing ing water programs and standards. Administers groundwater contamina- grant and loan programs for water treatment and cleanup. tion might also address U.S. Geological Survey Conducts studies and provides groundwater surface water and soil monitoring for the State Water Resources Control contamination. For this Board’s Groundwater Ambient Monitoring and As- sessment Program. Monitors national water use reason, groundwater and conducts scientific studies. expenditures in state U.S. Bureau of Reclamation Monitors the impact of the surface water on agencies are difficult to groundwater basins in areas of the Central Valley Project, a surface water distribution project similar separately identify and to the State Water Project. therefore quantify. LegisLative anaLyst’s Office 11 an LaO RepORt Groundwater Pro- Figure 7 gram Expenditures Vary Groundwater Program Expenditures, by Fund Source Greatly Over Time. As (In Millions) shown in Figure 7, fund- ing for ongoing ground- $500 water programs has 450 varied greatly over time. All Othersa 400 Bonds Such funding has in 350 many years come heav- 300 ily from special funds (mainly fees), for such 250 purposes as regulating 200 water quality, reducing 150 leaks from underground 100 storage tanks, cleaning 50 up groundwater sources, and managing ground- 1998-99 2000-01 2002-03 2004-05 2006-07 2008-09 water resources. The (Projected) General Fund has been a Excludes about $250 million annual appropriation for Underground Storage Tank Cleanup Fund programs funded by fees. the main funding source ter and integrated regional water management. for DPH’s drinking water For example, the Groundwater Ambient Monitor- regulatory program, although federal funds and ing and Assessment (GAMA) program, relies on bond funds have been in the main source of a $50 million appropriation from Proposition 50 support for DPH’s financial assistance programs. bond funds (in addition to a small amount of These programs are designed to assist local and baseline special fund support) to conduct a com- private water agencies in meeting safe drinking prehensive multiyear assessment of statewide water standards. groundwater quality. In recent years, federal di- Bond Funds Provide Large One-Time In- rect spending has supported the GAMA program fluxes. As shown in Figure 7, bond funds have when bond funds were temporarily unavailable. provided large one-time influxes of funding. These federal funds are limited, however, and the These funds have been a source of support for program will need to find other funding starting many different programs, including drinking wa- in 2011-12 in order to continue. 12 LegisLative anaLyst’s Office an LaO RepORt currEnt iSSuES With groundWatEr managEmEnt The Groundwater Challenge—When able, relatively expensive bottled water may be Contamination Reduces Water Supply the only available drinking water supply. The DPH reported that nitrate (a groundwater The potential to use groundwater to increase contaminant) was detected in levels that exceed water supply, either by introducing water from safe drinking water standards in 921 public drink- another source into the ground as a storage basin ing water sources, mostly in agricultural areas. or encouraging the natural refilling of groundwa- In many of these areas, groundwater is the sole ter basins, is a significant option to address water source of drinking water for the community. supply needs. However, there are potential barri- Cleanup Is Costly. Cleaning up contaminated ers to this water reliability strategy. Communities groundwater can be very expensive. For this are increasingly discovering that many primary reason, the state established an Underground groundwater basins are contaminated. Pollution Storage Tank Cleanup Fund in 1989 to provide from industrial activities (such as military facili- financial assistance to the owners and operators ties), commercial businesses (such as dry clean- of USTs containing petroleum. The fund, which ers), leaking underground storage tanks (USTs), is administered by SWRCB and supported by an septic systems, and agricultural activities have annual assessment on tank owners, is used to reduced or eliminated the availability of usable remediate conditions caused by leaking USTs, groundwater in many parts of the state. In some including the contamination of groundwater sup- cases, when a contaminant is discovered, it may plies. Expenditures from the fund have varied be- take decades to remove pollution and bring the tween about $180 million to $280 million annu- water back to usable condition. ally over the last ten years for hundreds of sites. Loss of Water Source Can Be Expensive to For 2010-11, the Governor’s budget proposes Locals. As discussed earlier, while 43 percent expenditures of $400 million from this fund—the of Californians rely in part on groundwater for highest level ever. their drinking water needs, some communities rely on groundwater for 100 percent of their Most Supply Projections Do Not Account water needs. As part of routine testing of drink- For Groundwater Contamination ing water, the DPH has sometimes discovered In many cases, contamination of a ground- that a source of water (such as groundwater) is water basin is known to local water managers, contaminated to a level that violates state and/or who are able to use this information to plan for federal safe drinking water standards. Discovery water supply needs. However, state projections of contamination in a drinking water well often often disregard contamination, particularly where leads to closure of the well. Users of the well groundwater basins have had historical pollu- must then find replacement sources of water. In tion problems that, when not addressed, remain areas where other sources such as surface water within that groundwater basin. This situation or alternate groundwater resources are not avail- LegisLative anaLyst’s Office 13 an LaO RepORt Key State PlayerS in Water Quality regulation ü Department of Public Health—Drinking Water Program ➢ Regulates public water systems with over 15 service connections for drinking water quality; oversees water-recycling projects, permits water treatment devices; and provides various technical assistance and financial assistance programs for water system operators—includ- ing bond and federally funded programs for infrastructure improvements in public water systems—to meet state and federal safe drinking water standards. ➢ Prior to approval of the Proposition 50 bond measure, the department had a limited role direct in groundwater issues through the Public Water Supervision System program funded mainly by fees on public water systems, federal grants, and the General Fund. Propositions 50 and 84 (bond measures) expanded the department’s role to include local assistance grant programs for source water protection projects, many of which are groundwater projects. ü State Water Resources Control Board ➢ Primary state entity responsible for meeting state and federal water quality standards within the state. ➢ State and regional water boards assess groundwater quality, permit pollution discharges which may impact ground and surface waters, and investigate and direct the cleanup of contaminated groundwater resources. May require groundwater monitoring to assess the extent of contamination and impact of treatment technologies. ➢ Administers the Groundwater Ambient Monitoring and Assessment Program, a multiyear program designed to obtain information on groundwater quality in California. ➢ Works with De- Two State Agencies Regulate Drinking Water Quality partment of Wa- ter Resources to administer and set guidelines for the Inte- grated Regional Water Manage- Department of ment Program Public Health and other programs where crossovers exist Water Supply Source between water State Water Resources (groundwater and Control Board quality and wa- surface water) ter supply. 14 LegisLative anaLyst’s Office an LaO RepORt poses challenges for estimating how much water cally connected. Groundwater aquifers are por- is available for water supply and the cost to treat trayed as a sort of sponge, with the water that contaminated water. In some cases, this is be- fills the area between soil particles akin to an ex- cause of a lack of adequate monitoring of water pansion of the sponge. If a stream or river moves quality in groundwater basins, and in others it through, in, and around that sponge, the two is because groundwater monitoring data that is interact. If the groundwater sponge is dry, some gathered is not shared systematically or compre- water from the surface stream will be pulled into hensively with state agency officials. the groundwater area. If the groundwater basin Land Use Decisions May Also Be Affected. is full (picture a fully expanded sponge) and the Chapter 642, Statutes of 2001 (SB 221, Kuehl), stream is dry, water will leach into the stream, requires land use developers to prove that water providing it water. In this way, most groundwater is available before proceeding with a develop- (usually called “percolating groundwater”) can be ment of over 500 units or other specific size understood to have a direct physical connection requirements. However, the measure does not to surface water, rather than existing as a sepa- explicitly require that the developer prove that rate entity or underground river. the groundwater supply that a project may be State Water Laws Do Not Reflect Accepted relying upon, for purposes of showing the avail- Science. Despite this scientific understanding of ability of water, is actually usable. Most local how groundwater works, under California law, land use development does not have to take water is characterized as either surface water, into account likely trends for current and future subterranean streams, or percolating groundwa- groundwater contamination when determining ter. Water rights are required to use water taken the availability of water supplies to serve the new from surface water and subterranean streams, but development. This can be the case where the not for percolating groundwater. inhabitants of a proposed development would This legal scheme for permitting of water have to rely on wells that have contaminants that rights, however, is inconsistent with hydrological cause public health concerns, either as the result science, because it does not taken into ac- of natural sources of contamination (such as from count the interactions discussed above between the leaching of arsenic into the water supply) or groundwater and surface water. According to a human causes (such as pollution by perchlorate). report on water rights commissioned by SWRCB, Land use decisions about such new development “the (legal) distinction between percolating projects do not always take into account the po- groundwater and subterranean streams is mean- tentially high cost on an ongoing basis of treating ingless, or nearly so.” water supplies for the new residents. In some cases, the SWRCB has attempted to address this problem by administratively defin- The “Disconnect” Between ing the groundwater surrounding a number of Groundwater Law and Science rivers (currently less than 15 statewide) as subter- Groundwater and Surface Water Intercon- ranean streams, which are within the purview of nected. In a 2003 publication, DWR describes water rights permitting. However, these conflicts groundwater and surface water as being physi- between state law and scientific reality make LegisLative anaLyst’s Office 15 an LaO RepORt regulating groundwater difficult and mean that gain for water supply, either on a local or state- litigation is often necessary to adjudicate ground- wide basis. water rights issues. As groundwater quality and supply chal- lenges grow, the cost to the department to make Practical Implications of State’s accurate estimates, having to use disparate and Gaps in Groundwater Management conflicting information to create a statewide Added Difficulties in State Water Planning. water supply picture, could increase. Integrating Currently, the DWR is charged under state law data from multiple sources, which are generally with assessing California’s urban, agricultural, not standardized in their presentation, is a very and environmental water needs; evaluating difficult task. The cost to create new information potential water supplies; and reviewing whether technology programs to integrate these data can any actions are needed to reduce demand to also be very expensive. help address any shortages. As part of the as- The potential for local groundwater plans sessments prepared for these purposes by DWR to advise state water planning efforts is far from every five years (commonly referred to as the being met. With the passage of AB 3030 in California Water Plan), the department estimates 1992, groundwater management plans prepared groundwater basin yields and attempts to take locally were voluntarily submitted to DWR in into account general water quality efforts (includ- attempt to support local management of ground- ing those related specifically to groundwater). water while allowing the state some certainty However, as discussed below, the state’s water that locals had a plan for future management of planning efforts are impeded by weaknesses in their groundwater. As we discussed, these plans the statewide management of groundwater. (generally called AB 3030 plans) are required to In its 2009 update to the California Water be developed in a local public process and the Plan, the department reports on a number of law provides local fee and assessment powers to problems it faces with estimating groundwater implement the plans. Over 140 plans have been supply, including a lack of data that would indi- submitted statewide. cate what role groundwater can play in address- The mandated AB 3030 groundwater man- ing statewide water needs. Our analysis of the agement plans generally have not been used in available data similarly indicates that the lack statewide water planning because (1) the plans of information about groundwater quality can were voluntary, and a number of jurisdictions did lead to incorrect conclusions about the avail- not submit plans or did not submit complete and ability of groundwater supplies. For example, this useful plans, and (2) there were no requirements disconnect between actual groundwater supply that the plans that were submitted be implement- and reported supply might prompt the state to ed or improve the balance of the groundwater in make inaccurate assumptions about overall water the affected basin, the original plans have largely supply. In doing so, state funds appropriated for have been of little practical use to the department. water management purposes may not be going Notably, the information contained in the to projects that reflect the least cost and highest plans reflects data from a single point in time 16 LegisLative anaLyst’s Office an LaO RepORt that is not presented in a standard format that State and Federal Government Response— would permit comparisons in the status among Well Drilling and Cleanup. Often when wells groundwater basins. This makes it difficult to run dry, either in a series of dry years or even un- publicize the data in a meaningful way or use the der normal pumping practices, locals turn to the data to make policy decisions from a statewide state for assistance. Similarly, when wells become perspective. The legislation did prompt some contaminated and are unable to be used, locals local governments that might not otherwise have may turn to the state or federal government for done so to take an active role in managing their assistance in providing clean water supplies. groundwater basin. However, lacking any plans For example, the Office of Emergency Ser- for some areas of the state, DWR has not used vices (now known as the California Emergency the plans as a basis to prioritize state funding for Management Agency, or CalEMA) spent $5 mil- groundwater management efforts. lion in 2000-01 to pay for a well in Klamath The department neither was charged with County to respond to a water shortage emer- determining an AB 3030 plan’s accuracy nor gency that resulted when several wells went were they given the authority or funding to dry. In that same year, the Coastal Conservancy review the validity of a plan. In some cases, spent $1 million to fix septic systems that were AB 3030 plans are no more than a page long, polluting groundwater that flowed out to the though many are relatively comprehensive. The ocean. From 1997 to 2007, the Department of department still is not funded to review these Toxic Substances Control spent over $177 mil- plans, and while they may help the department lion to clean up groundwater contamination at paint the picture for water supply statewide, the the Stringfellow hazardous waste site in River- plans have not become a solid tool for consoli- side County, which posed a major public health dating information about groundwater manage- risk to local water supplies. In 2009, the federal ment statewide. government authorized $40 million in economic stimulus funds to drill wells in drought-stricken areas of the state. othEr StatES havE takEn StrongEr approachES to groundWatEr managEmEnt As shown in Figure 8 (see next page), Califor- Permitting, Public Reporting, and Monitor- nia differs from other western states in its relative ing. Most other western states have some form lack of regulation and management of ground- of permitting system for extraction of, or the right water. For the most part, these other states to use, groundwater. Most of these states also go further than California in their approach to require well data to be made public and these groundwater and offer specific policies the state states either meter, measure, or otherwise ac- may wish to consider to more effectively manage tively monitor groundwater. For example, Texas groundwater. allows local agencies to regulate groundwater LegisLative anaLyst’s Office 17 an LaO RepORt use, but requires well data to be submitted to the water use tracked carefully, to ensure the area’s state in a standardized format, and makes this groundwater supply is moving toward a long- data public on the Internet. As will be described term equilibrium between the water coming into in more detail below, Texas (as well as other the aquifer and the water being pumped out for states) set up specific management areas for water supplies. those groundwater basins that have the greatest Often the state defines the boundaries of the potential for overdraft, or face significant risks of AMA, and provides technical assistance to water contamination. users in the area in negotiating overall water use Active Management Areas (AMAs). Ground- levels. Some states set rules and goals for man- water flows by nature tend to overlap political agement of AMAs, including provisions regulat- boundaries, making it more difficult to manage ing the overdraft, replenishment, and recharge of these water resources. Local interests in one groundwater aquifers. area, for example, may wish to withdraw water “Show Me the Water”—Arizona’s Ap- at a more rapid rate than their neighbors, set- proach. Arizona generally requires its industries ting up a potential conflict over management of (including both those in urban areas and ag- a groundwater basin they share. In some cases, riculture) to prove the availability of water for such conflicts have led either to the overdraft- a project’s use over a lengthy period of time, ing of a basin or expensive court adjudication of according to a set of laws. Arizona’s unique ap- water rights among the competing water users. proach to water management began in the 1970s To deal with this problem, most western when it became apparent that its water supplies states have established AMAs that cross the would not satisfy its population growth under boundary lines of local jurisdictions. In general, then-current practices. As Arizona negotiated a in an AMA, a water user may withdraw and use multistate compact for a share of Colorado River groundwater only in accordance with the spe- water, it initiated a sweeping change to its water cific rules governing the storage of water from laws, including those for groundwater. The state surface water sources, withdrawal and use of looked out decades into the future to determine water, and reporting of well logs and extrac- how to grow with a limited water supply. Toward tion. All users in the AMA are known, and their this end, the state: Figure 8 California Lagging Other Western States in Groundwater Management California Arizona Texas Colorado New Mexico Groundwater Management Components: Statewide groundwater use permitting — X — X X Active management areas — X X X X Statewide policy—well data made public — X X X X Statewide policy—metering, —a X — X X measurement, and reporting requirements a SBX7 6 provides for statewide measurement (at the basin level), but not metering of water extraction. 18 LegisLative anaLyst’s Office an LaO RepORt ➢ Strengthened the state’s system for al- effort to work with local authorities to maintain a locating water rights and established a balance of power, with economic development water permitting system. Parties who had and industrial growth encouraged where avail- water rights that existed prior to 1980 able water supply makes this possible. were not subject to all of the new restric- Updating Groundwater Law. Many west- tions. ern state water laws were initially written in the 1800s and early 1900s, when the scientific ➢ Prohibited a net increase in agricultural knowledge of groundwater was extremely lim- land use in order to restrain overall water ited. Much like California, most states had statu- use, and strengthened existing statutes tory definitions of groundwater that had no basis giving urban water use priority over agri- in hydrology. Colorado and New Mexico are cultural water uses. Placed restrictions on among the states that have taken steps to mod- future municipal use of groundwater. ernize their definitions of groundwater, linking surface water and groundwater in law. Arizona, ➢ Enacted strict rules regulating wells, through its major permitting law change, also including permitting, monitoring, and allows for the interaction between surface water standardized reporting of groundwater and groundwater to be reflected in the allocation use. of water rights. ➢ Began a major effort to store excess Col- Financing Groundwater Management Pro- orado River water in groundwater basins, grams. Funding of state and local groundwater as opposed to surface storage, given the management programs is often a challenge. Most high amount of evaporation in hot areas. states we surveyed, such as Texas, use some amount of their General Fund monies to support ➢ Mandated conservation measures for state mapping and technical assistance programs. urban, industrial, and agricultural users. However, states that directly operate groundwa- Required new development to assure ter permitting programs generally use fees to at a 100-year water supply either through least partially support these activities, including surface water or groundwater. the resources needed for planning and technical The revamped Arizona laws have been gen- assistance to local agencies for groundwater pro- erally accepted and are being met with compli- grams. In all states we surveyed except Arizona, ance, though in individual cases the rules have local districts or management areas have the proved controversial. Local control over water authority to recover their groundwater pro- resources remains an issue, particularly since gram costs from the users of the water, whether the state administers all water rights under the through direct permitting fees or other types of Arizona system. However, the state has made an fees for water use. LegisLative anaLyst’s Office 19 an LaO RepORt rEcommEndEd StEpS to morE EffEctivEly managE california’S groundWatEr The Stakes Are High in Groundwater Man- efforts to clean up contaminated supplies and to agement. As we have mentioned, the potential to provide substitute sources of water to communi- use groundwater to increase water supply, either ties dependent upon groundwater. by introducing water from another source into For the reasons stated above, and to build the ground as a storage basin or by encourag- upon the work the Legislature has already done, ing the natural refilling of groundwater basins is we recommend that the Legislature adopt four a significant option to address the state’s water fundamental changes to the way the state man- supply needs. However, successful implementa- ages groundwater. These recommendations, tion of this solution into the state’s management which are summarized in Figure 9, represent the of water is hampered by the state’s lack of regu- first steps that the state could take so that, in the lation or monitoring of groundwater resources. long run, it is in a position to more strongly and Management of groundwater supplies—to the effectively manage its groundwater resources. extent that it does occur—resides mainly at the We recommend a shift to a more comprehen- local level and thus, by its very nature, does not sive groundwater management regime, similar to address water needs from a statewide perspec- those being implemented successfully by other tive. As a result, groundwater quality is not pro- states, in order to avoid future water emergencies tected under state regulation and enforcement as from the contamination of groundwater supplies comprehensively as surface water quality. As we and to make California’s statewide water supply have discussed, the consequences of insufficient system more reliable. action to protect these water resources are high. Strengthen Monitoring Requirements Once contaminated, groundwater loses some of its potential to serve as a water supply source. The state needs, but now lacks, comprehen- The situation has already led to costly emergency sive data on groundwater extraction, ground- Figure 9 LAO Recommendations for Improving Groundwater Management Problem Recommendation Monitoring not comprehensive statewide Phase in a comprehensive monitoring system to allow the state to focus funding and technical assistance efforts to the areas in greatest need. Current management efforts not necessarily focused on Establish Active Management Areas where groundwater overdraft potential most challenged groundwater areas and/or extent of pollution problems are the highest. Groundwater law does not reflect scientific reality Bring science and law together by modernizing groundwater law to accurately reflect the physical interconnection of surface water and groundwater. Groundwater use and rights unclear, leading to distribution Consider establishing statewide groundwater permitting over a multiyear and management issues period based on data from expanded monitoring requirements. Maintain local control over implementation of state permit granted at either district or basin level to the extent possible. 20 LegisLative anaLyst’s Office an LaO RepORt water levels, and groundwater quality. For this establishment of an AMA, as is the policy in reason, we recommend that the state phase in a most western states. In these basins, the state comprehensive groundwater monitoring pro- would recognize that issues of statewide impor- gram over a period of years modeled after the tance—ensuring the preservation of water quality best such measures adopted by other western and reliability of the state’s water supply—must states. Our analysis of other states finds that in some instances take precedence over a local while no other single state program is an obvi- desire for full control over management in the ous perfect fit as a model for California, there is basin. However, as in Arizona, it is possible for much to be learned from the examples of other there to be significant local input into the AMA state programs. Building on recent legislation that process and for each AMA to have varying goals strengthens monitoring requirements, the Legis- that reflect each locality’s unique circumstances. lature should further require local water districts For example, some AMAs may require restric- to submit standardized extraction data from all tions on certain uses of water for a period of time groundwater wells, as in Texas and Arizona. (such as the imposition of certain conservation The DWR should be directed to assess and measures), while others may have more stringent integrate this information into the California Water or permanent rules aimed at restricting overdraft- Plan, thereby helping the state to more effectively ing of the basin as a whole. plan for future water supplies, especially during Bring Law and Science Together dry years. The state will then be in a position to target assistance to groundwater basins with supply The erroneous distinction now reflected or contamination problems, while allowing local in California law between surface water and authorities who do not need state fiscal or technical groundwater is an impediment to the establish- assistance in their management of groundwater sup- ment of surface water rights that accurately plies to continue working on their own. reflect the science of water. As DWR has stated, and as is acknowledged in other western states, Establish AMAs groundwater can have a significant impact on the In some areas of the state, local management availability of surface water supplies. Indeed, all will be sufficient to both plan for and man- groundwater at some time starts as surface water. age groundwater basins. Indeed, many areas of The lack of legal and regulatory acknowledge- the state are successful in their management of ment of this interaction has led to time-consum- groundwater, as is demonstrated by the Or- ing and expensive litigation involving both public ange County Water District’s approach to water and private entities. As a starting point for reform management (see box on next page). There, a in this area, we recommend that the Legisla- long-term approach to groundwater management ture amend statute to remove the current legal has led to relatively reliable water supply, with a distinction between percolating groundwater and significant portion derived from groundwater. subterranean streams. This is a necessary step to However, for those groundwater basins with allowing the interaction of surface and ground- the potential for established overdraft or with water to be integrated into the administration of groundwater pollution, we recommend the state water rights in the state. LegisLative anaLyst’s Office 21 an LaO RepORt Consider Groundwater Permitting, sider phasing in the establishment of a state- While Maintaining Some Local Control administered water rights system for groundwater as is the case in most other western states. Our prior three recommendations provide a Additional information is expected from good starting point for improving state ground- DWR in 2012 regarding the status of the state’s water policy, in that they (1) provide better major groundwater basins. Once it has reviewed information through monitoring on the status of this additional information, the Legislature should groundwater supplies, (2) integrate science and evaluate how a groundwater permitting system law in this area, and (3) test AMAs as a tool to could complement the Legislature’s policy as manage these water supplies primarily locally. reflected in existing groundwater statutes, and However, the Legislature may ultimately deter- in conjunction with any existing AMAs. The mine that further steps are needed in the longer Legislature would then be in a position to direct run to address the state’s groundwater problems. both DWR and SWRCB to develop an appropri- Thus, we recommend that the Legislature con- O C W D : a L -t a range Ounty ater istriCt Ong erm pprOaCh t g m O rOunDWater anagement Following a precipitous drop in groundwater levels in some areas of the Orange County groundwater basin, the Orange County Water District was formed in 1933 by an act of the Leg- islature to “represent the water users and landowners of the Coastal Plain in all litigation involv- ing outsiders.” The basis for the creation of the district was to protect the water supply serving the over 160,000 acres of then-mainly agricultural land in the district. The act did not restrict water use within the basin. Rather, it allowed the district to charge water users to both protect existing water supply as well as to purchase or develop water supplies from outside sources to satisfy the demand of water users in the district. In 1953, a replenishment assessment (“pump tax”) and monitoring program was established by amend- ing the original act. Those who pumped groundwater were required to report twice per year the amount of groundwater extracted (a district-run water quality monitoring program was later added), and to pay an assessment per acre-foot of water extracted. Using mainly income from the pump tax, the district’s activities have included (1) efforts to reduce sea water intrusion (a situation in which groundwater levels drop below sea level, allowing salt water to enter the groundwater); (2) the extensive purchase of surplus water from outside sources, including from the State Water Project and Colorado River supplies, to offset overdraft in the basin; and (3) the development of a project to de-mineralize and purify waste- water into pure drinking water, known as Water Factory 21. The efforts of the basin are largely considered a success as they have been able to hold back seawater intrusion into the ground- water basin and to maintain an adequate level of water supply for customers using their various groundwater management methods. 22 LegisLative anaLyst’s Office an LaO RepORt ate groundwater rights system that, as we discuss New Groundwater Strategies below, maintains local control to the extent Likely to Result in Long-Term Savings possible and that is based off of standardized In the short term, implementation of the vari- monitoring data and established science. We do ous recommendations we have proposed above not, however, recommend that the state mirror would result in modest administrative costs for entirely the existing water rights system that now state and local water agencies. We recommend exists in California for surface water. To ac- that these costs be offset by fees similar to the knowledge the significant achievements of local way the state pays for the regulation of surface groundwater management efforts, and to build water use and water quality. We believe a strong on our recommendations for increased monitor- case can be made for having groundwater users ing and establishment of AMAs, we recommend and polluters of groundwater pay for the costs of the Legislature consider establishing statewide state groundwater regulatory programs. groundwater use permitting while retaining some In the long term, we believe it is likely that local control. To accomplish this, permits could the set of strategies we propose would result in be granted at either the basin or district level savings to public and private entities across the (rather than to individual water users), thereby state. This is because these efforts would eventu- allowing locals some discretion as to the use of ally decrease the need for costly water rights ad- water within their jurisdictional boundaries. We judications and help to avoid the cost of clean up recommend that DWR have the authority to set or treatment of degraded groundwater for use in levels of water use within a basin as a whole for water supply. There would also likely be reduced each water user if more deliberate management long-term future costs related to overdrafting of is required due to overdraft problems or the con- groundwater basins, including emergency response tamination of groundwater supplies. measures to aid communities for which valuable We recommend phasing in this new state- groundwater supplies have been depleted. wide permitting system over a ten-year period after other strategies have been put in place that Fine-Tuning These Reform Concepts are a prerequisite to establishing an effective This report addresses, in a high-level con- permitting system. Specifically, the state at pres- ceptual way, the basic set of changes we have ent does not have standardized groundwater use concluded are needed to improve groundwater reporting, nor does it have a clear picture of the monitoring and management from the state’s full extent to which groundwater supplies are be- perspective. However, implementation of these ing contaminated. By first implementing compre- concepts would involve resolving many impor- hensive groundwater monitoring and establishing tant technical issues. If the Legislature wishes to AMAs, the SWRCB would be in a better position pursue the approaches we have outlined, we to work with locals to establish clear parameters recommend that it direct the three state agencies for groundwater-related water rights based on primarily responsible for groundwater manage- standardized data and established science. It ment—the DPH, DWR, and SWRCB—to jointly would also have the experience of managing report at hearings on the groundwater manage- groundwater within AMAs. ment models we have identified in other states LegisLative anaLyst’s Office 23 an LaO RepORt and their practical application for California. The the implications of changes on local control, state- hearings would engage the departments and other wide planning, information gathering, and fore- important stakeholders, such as local water juris- casting. The Legislature could then be apprised of dictions, in a review of other state models relevant current best practices in the field of groundwater to the management and regulation of groundwa- management most suitable to protect the state’s ter. California state agencies should weigh in on valuable liquid asset, its groundwater. LAO Publications This report was prepared by Catherine Freeman with assistance from Heather May, and reviewed by Mark Newton. The Legislative Analyst’s Office (LAO) is a nonpartisan office which provides fiscal and policy information and advice to the Legislature. To request publications call (916) 445-4656. This report and others, as well as an E-mail subscription service, are available on the LAO’s Internet site at www.lao.ca.gov. The LAO is located at 925 L Street, Suite 1000, Sacramento, CA 95814. 24 LegisLative anaLyst’s Office