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Not All Water Stored Underground Is Groundwater: Aquifer Privatization and California's 2014 Groundwater Sustainable Management Act Adam Keats Center for Food Safety

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Not All Water Stored Underground Is Groundwater: Aquifer Privatization and California's 2014 Groundwater Sustainable Management Act Adam Keats Center for Food Safety Golden Gate University Environmental Law Journal Volume 9 Issue 1 Symposium Edition: The Waste of Water in Article 7 21st Century California January 2016 Not All Water Stored Underground is Groundwater: Aquifer Privatization and California's 2014 Groundwater Sustainable Management Act Adam Keats Center for Food Safety Chelsea Tu Center for Biological Diversity Follow this and additional works at: http://digitalcommons.law.ggu.edu/gguelj Part of the Environmental Law Commons, and the Water Law Commons Recommended Citation Adam Keats and Chelsea Tu, Not All Water Stored Underground is Groundwater: Aquifer Privatization and California's 2014 Groundwater Sustainable Management Act, 9 Golden Gate U. Envtl. L.J. 93 (2016). http://digitalcommons.law.ggu.edu/gguelj/vol9/iss1/7 This Article is brought to you for free and open access by the Academic Journals at GGU Law Digital Commons. It has been accepted for inclusion in Golden Gate University Environmental Law Journal by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. Keats and Tu: Aquifer Privatization NOT ALL WATER STORED UNDERGROUND IS GROUNDWATER: AQUIFER PRIVATIZATION AND CALIFORNIA’S 2014 GROUNDWATER SUSTAINABLE MANAGEMENT ACT ADAM KEATS* CHELSEA TU** I. INTRODUCTION California’s Sustainable Groundwater Management Act of 2014 (“Act”) has been heralded as a “once-in-a-century achievement.”1 While some have criticized the Act’s relatively modest regulatory goals, long compliance deadlines, and weak enforcement powers,2 others have hailed the mere accomplishment of the state passing some form of *Adam Keats is a senior counsel at the Center for Food Safety, where he focuses on water privatization issues. He is lead counsel on several major water infrastructure lawsuits, including Central Delta Water Agency v. Department of Water Resources (3d Appellate District Case No. C078249), concerning the Monterey Amendments to the State Water Project and the privatization of the Kern Water Bank, and Center for Biological Diversity v. County of San Bernardino (4th Appellate District Case No. G051058), concerning the Cadiz water mining project. He received his J.D. from UC Davis School of Law. **Chelsea Tu is a staff attorney at the Center for Biological Diversity. She works on limiting land development and preserving freshwater resources for the public and endangered species. Ms. Tu received her J.D. from the American University Washington College of Law with a focus on Environmental Law and holds a Bachelor of Science in Environmental Sciences from the University of California at Berkeley. 1 See Quinn, Timothy and Snow, Lester, Viewpoints: Groundwater legislation marks turning point to achieve reliable water supply,THE SACRAMENTO BEE (Sept. 27, 2011), http://www.sacbee .com/latest-news/article2613371.html; Sustainable Groundwater Management Act, CAL. WATER CODE § 10720 et seq. (Westlaw 2015)[hereinafter “2014 Act”]. 2 Jeremy Miller, California’s Sweeping New Groundwater Regulations, HCN.ORG (Nov. 10, 2014), http://www.hcn.org/issues/46.19/californias-sweeping-new-groundwater-regulations; Rob DiPerna, Groundwater Legislation is Not Strong Enough (Sept. 11, 2014), http://www.wildcalifornia .org/blog/groundwater-legislation-is-not-strong-enough/; see also Bettina Boxall, Bills Regulating State’s Groundwater Not an Instant Fix for Aquifers, LATIMES.COM (Sept. 8, 2014), http://www .latimes.com/science/la-me-groundwater-20140908-story.html. 93 Published by GGU Law Digital Commons, 2016 1 Golden Gate University Environmental Law Journal, Vol. 9, Iss. 1 [2016], Art. 7 94 GOLDEN GATE UNIV. ENVIRONMENTAL LAW J. [Vol. 9 groundwater legislation3 and celebrated the Act’s stated goals of protect- ing existing water rights and local control of groundwater supplies.4 Some groundwater basins may prove to be well-suited for the regulatory scheme imposed by the Act,5 but equitable regulation of other ground- water basins may be challenged by current and future efforts to privatize these groundwater resources. Specifically, several major basins, includ- ing the Paso Robles and the Kern, are threatened by the development of water banking operations which function to replace groundwater re- sources with privatized, banked water that would undermine the public interest – a threat that the Sustainable Groundwater Management Act may be promoting. II. GROUNDWATER REGULATION IN CALIFORNIA – LOCAL CONTROL? While California’s groundwater has historically been mostly unreg- ulated, there have been exceptions, primarily through court adjudication of groundwater rights for specific basins. Twenty-three groundwater ba- sins, mostly in southern California, have court-ordered limits on pump- ing and court-appointed water-masters to manage the basins.6 The Sustainable Groundwater Management Act of 2014 does not change this basin-by-basin (or “local”) approach to regulation, as it seeks to accom- plish its goal of making California’s groundwater resources more sus- tainable by empowering local agencies to regulate their local groundwater basins.7 Under the Act, any local agency or combination of local agencies overlying a groundwater basin may now elect to become or form a 3 Lisa Lien-Mager, ACWA Applauds Passage of Groundwater Legislation,CALIFORNIA FARM BUREAU FEDERATION (Aug. 29, 2014), http://www.cfbf.com/CFBF/CFBFNews/NewsRelease/2014/ Groundwater_bills_will_cause_harm__farm_leader_says.aspx. 4 Office of the Governor, Signing Message (Sept. 16, 2014), http://gov.ca.gov/docs/Ground- water_Signing_Message.pdf; see also 2014 ACT, Uncodified Legislative Findings (a)(6) (“Ground- water resources are most effectively managed at the local or regional level”); see also CAL. WATER CODE §113 (“Sustainable groundwater management is best achieved locally through the develop- ment, implementation, and updating of plans and programs based on the best available science.”) 5 For example, groundwater in Glenn County is managed jointly by 17 sub-areas that have adopted and operate by mutually agreed upon basin management objectives. See Glenn County Gets Ready for Action on Groundwater Management,CHICOER.COM (Feb. 28, 2015), http://www.chicoer .com/general-news/20150228/glenn-county-gets-ready-for-action-on-groundwater-management; De- velopment of a Locally Driven Groundwater Management Plan, COUNTY OF GLENN, WATER ADVI- SORY COMMITTEE, http://www.glenncountywater.org/management_plan.aspx; Allan Fulton, et al., Possible Approaches to Groundwater Management in the Northern Sacramento Valley,UNIV. OF CAL. AGRIC. & NAT’L RES.NEWSLETTER (Aug. 2003), http://www.glenncountywater.org/docu- ments/PossibleApproaches-Aug03.pdf. 6 Groundwater Management,GROUNDWATER INFORMATION CENTER (California Dept. of Water Resources), http://www.water.ca.gov/groundwater/groundwater_management/index.cfm. 7 See 2014 ACT, Uncodified Legislative Findings (a)(6); CAL. WATER CODE § 10723. http://digitalcommons.law.ggu.edu/gguelj/vol9/iss1/7 2 Keats and Tu: Aquifer Privatization 2015] AQUIFER PRIVATIZATION 95 Groundwater Sustainability Agency (GSA), with certain specific agen- cies designated as the exclusive agencies within their boundaries, unless they choose to opt out.8 The Act confers significant regulatory powers on the local GSAs, including the power to assess fees on users,9 impose monitoring and reporting of groundwater pumping,10 and impose con- trols and limits on groundwater pumping.11 GSAs are required to create and implement Groundwater Sustainability Plans (GSPs) for certain high- and medium-priority basins in order to accomplish the goals of the Act.12 The state Department of Water Resources is tasked with evaluat- ing and assessing the GSAs and GSPs,13 while the State Water Resources Control Board is empowered to step in when no GSA has been estab- lished for a basin or when a GSA fails to meet its obligations.14 Ensuring local regulation of groundwater resources was likely es- sential to the Act’s passage, and it makes some sense given the wide variations of water use, needs, and geography across the state. But “local control” can have different meanings and very different consequences, depending on which agency ultimately assumes the GSA role for a par- ticular groundwater basin. While many water agencies in California serve a wide variety of users and operate democratically, other water agencies are completely or largely controlled by a few users, or even just one, making them less like regulatory agencies and more like functional extensions of their particular members.15 The best known water bank in California is the Kern Water Bank, a 19,990 acre groundwater reservoir under Bakersfield that has the capac- ity to store 1.5 million acre-feet of water.16 Originally owned and devel- 8 CAL. WATER CODE §10723(a), (c)(1), (c)(2). 9 CAL. WATER CODE § 10725.4(a)(3). 10 CAL. WATER CODE §§ 10725.6 and 10725.8. 11 CAL. WATER CODE § 10726.4(a)(1) and (2). 12 CAL. WATER CODE § 10727(a). 13 CAL. WATER CODE § 10733. 14 CAL. WATER CODE § 10735.2. 15 See Salyer Land Co v. Tulare Water Dist., 410 U.S. 719 (1973) (finding because a water storage district does not exercise normal governmental authority, and its actions disproportionately affect landowners because the economic burden of its operations is confined to landowners, it is not a denial of equal protection to withhold the right of franchise from those who do not own land); but see Choudhry v. Free, 17 Cal. 3d 660, 668 (1976) (distinguishing facts from Salyer since residents of the Imperial Irrigation District rely on the district for all their
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