Coordinating Water Resources in the Federal System: the Groundwater-Surface Water Connection

Members of the U.S. Advisory Commission on Intergovernmental Relations (October 1991)

Private Citizens Daniel J. Elazar, Philadelphia, Pennsylvania Robert B. Hawkins, Jr., Chaimzn, San Francisco, California Mary Ellen Joyce, Arlington, Viginia

Members of the U.S. Senate Daniel K. Akaka, Hawaii Dave Durenberger, Minnesota Charles S. Robb, Viginia

Members of the U.S. Hour of Representatives Donald M. Payne, New Jersey Craig Tbow Wyoming Ted MUSS, New York

Officers of the Executive Branch, U.S. Government Debra Rae Anderson, Deputy As&ant to the Resident, Director of Intergovernmental Affairs Samuel K. Skinner, Secretaq of Transportation vocaney

Governors John Ashcroft, Missouri Booth Gardner, WAshington George A. Sinner, North Dakota Stan Stephens, Montana

Mayors Victor II. Ashe, Knoxville Tbnnessee Robert M. Isaac$ colorado springs, Colorado Joseph A. Leafe, Norfolk, Viginia *f=Y

Members of State Legislatures David E. Nething, North Dakota Senate Samuel B. Nuneq Jr., President, Louisiana Senate Ted L. Strickbmd, Colorado Senate

Elected County Offkials Ann Klinger, Merced County, California, Board of Supervisors James J. Snyder, Cattaraugus County, New York, County Legislature D. Michael Stewart, Salt Lake County, Utah, County Commission Coordinating Water Resources in the Federal System: The Groundwater-Surface Water Connection

U.S. Advisory Commission on Intergovernmental Relations October 1991 l A-l 18 U.S. Advisory Commission on Intergovernmental Relations 800 K Street, NW South Building Suite 450 Washington, DC 20575 (202) 6533640 FAX (202) 653-5429 ii U.S. Advisory Commission on Intergovernmental Relations Executive Summary

Groundwater appears in basins throughout the Management is defined in terms of functions,not United States. It serves half of the nation’s population in terms of the types of organizations that perform with drinking water and provides significant those functions, thereby recognizing that multiple amounts of the water used for irrigation, livestock, organizational and interorganizational forms maybe and industry. In addition to being an important effective. The functions of conjunctive management source of water supply, groundwater basins are also are: control of overdraft, which in turn involves sources of storage capacity In fact, underground limitations on water withdrawals and assuring suffi- storage has greater capacity than surface storage and cient replenishment regulation of storage capacity; is more desirable in several respects. protection of water quality from degradation result- The value of groundwater basins as sources of ing from management practices; the assignment of water supply and storage has been increasing for management costs; and maintaining adaptability several reasons: (1) increasing water use; (2) greater and error correction capabilities. past development of surface water supplies; (3) Most planned conjunctive management com- increasing concerns about water quality; (4) needs for bines public and private institutions to coordinate the protection of instream flows of surface streams; and conjunctive use of surface and groundwatersupplies. (5) increasing reliance on groundwater supplies for Debates over the proper models of organization- the more highly consumptive uses of water privatization versus centralized public authority- A crucial factor in the determination of the value overlook the experience of groundwater manage- of groundwater supplies-and, hence, the perceived ment and the desirability of a noncentralized, need for improved management - is the very uneven public-private management setting. This helps to distribution of supplies and use, even within regions. define and represent different communities of inter- Groundwater availability and types of basins also est, with real advantages in conjunctive manage- vary throughout the country As a result, most ground- ment, particularly for enhancing efficiency and water management has been initiated by state and equity while maintaining adaptability. local governments, despite increased calls for active The United States has a complex and regulated federal management water economy, involving provider and producer In many cases, state and local governments have organizations (importers, wholesalers, retailers, pursued conjunctive management of groundwater and regulators). This complex water economy in- supplies together with available surface water sup- volves hundreds of thousands of organizations and plies Conjunctive management-the coordination interorganizational relationships, which can be of conjunctive use - exploits the different characteris- understood using the organizing concepts of our tics of surface and groundwater, and coordinates use mixed political economy. and storage so as to increase the total water yield over Conjunctive management calls for the coordinated time; increase reliability of water supply; reduce risks use of surface and groundwater supplies This does not of total loss of supply from quality degradations; and necessarily mquiie organizational integration The lar- lower the costs of construction, transmission, distribu- ge+cale physical facilities and capital investments tion, and maintenance. Conjunctive management required for surface water development call for a (managing surface and groundwater supplies togeth- different scale of organization than groundwater devel- er) is distinguished from integrated management opment This is demonstrated by the fact that most small (managing groundwater supplies and groundwater water systems rely on gnnmdwater while the very large quality together). systems mly primarily on surface water

U.S. Advisory Commission on Intergovernmental Relations iii Coordination is achieved through a variety of organized as much to seek state and federal water interorganizational arrangements, including con- subsidies as to improve management The subsidiza- tracting. Dispute resolution also is achieved by sever- tion game, whereby local beneficiaries attempt to al means, including negotiating., bargaining and spread costs to the residents of larger jurisdictions, has adjudication. Special districts frequently have been encouraged the overuSe of cheap water supplies and established because their jurisdictional boundaries inhibited improved management can be adjusted to communities of interest, because The federal government has considered several their separate existence increases their financial groundwater management initiatives during the past autonomy, and because they can act as functional decade. Most of these are mandates and conditions of specialist organizations. federal assistance to state and local governments, State and local initiatives to improve manage- despite the fact that the scope of direct federal action ment of groundwater supplies range from central- was expanded by the Supreme Court’s ruling that ized administration of state statutes to local special groundwater is an article of interstate commerce district operations without statewide authority, and (Sporltnse v. Nebmskn, 1982). Mandates and conditions also include interstate and interlocal cooperation and may inhibit innovations. In particular, conditioning coordination. It is impossible to distill a model for financial assistance for water projects on federal state or local groundwater supply management from approval of state or local groundwater management among the many options. programs is likely to be counterproductive if an Nevertheless, important barriers to more effec- approved project develops subsidized and under- tive conjunctive management remain. Most of these priced water supplies barriers are institutional, having to do with the rules Some pending federal action would help to governing behavior and the incentives facing water remove barriers to effective groundwater manage- users. Many states’ water rights rules inefficiently tie ment Increased research, especially on institutional water rights to land ownership, leave water rights arrangements, appropriately organized on a national unquantified, generate disincentives to conserve scale, aids state and local decisionmakers in devising water supplies and to use underground storage, and and implementing effective programs. Increased inhibit transfers of water rights from lower valued to information sharing programs among state and local higher valued uses. Federal laws have created un- governments would also improve the base for man- specified “reserved water rights,” generating addi- agement decisions. tional uncertainties for state and local decision- This report concludes with a set of recommenda- makers. More effective management requires water tions for federal, state, and local contributions to the rights characterized by certainty and flexibility. Most improved management of groundwater supplies. existing systems impose obstacles to both. The recommendations do not include the develop- The continued underpricing of water, whether as ment of additional water supplies, but emphasize a result of local pricing practices, state and federal improving the institutional arrangements for allocat- subsidies, or both, reduces incentives to use water ing, managing, and protecting groundwater supplies conservatively. In many cases, local water users have in a federal system.

iv U.S. Advisory Commission on Intergovernmental Relations Preface

Water supply and water quality emerged as that a federal system such as ours in fact has great important issues during the 1970s. Early in the 198Os, organizing and coordinating strengths. former Environmental Protection Agency Adminis- All types of governments in the American trator William Ruckelshaus described groundwater federal system have roles to play in facilitating management as “the environmental issue of the improved water resource coordination. The several decade.” Both decades were characterized byincreas- functions involved have different appropriate scales ing groundwater use, multiple (and sometimes con- of operation. Some, especially the development of flicting) claims to existing water supplies, greater basic research, applied research capability, and the concerns about protecting environmental quality production and dissemination of information, are and aesthetic values of surface water supplies, and appropriately organized on a national scale, whether restricted availability of public sector funds for addi- through direct federal activity or support for universi- tional water development During this period, the ties, water resources research centers, and the water attention of concerned citizens and policymakers resources associations and organizations. Other func- turned toward improved management of groundwa- tions, such as the improvement of institutional capac- ter supplies. This has led to a general consensus in ity for regulation and conflict resolution, the estab- support of the idea of conjunctive management, the lishment of incentive-compatible laws governing coordinated use of groundwater and surface water water rights and transfers, and technical and finan- supplies, where possible, Coordinated use can in- cial assistance to groundwater management institu- crease total water supply, with greater reliability and tions, are appropriately organized by the states Still lower costs, while protecting water quality other functions, such as appropriate water supply This kind of coordination entails active manage- pricing, and activities requiring close knowledge of ment and high information requirements. Moreover, the groundwater resource and its users, such as availability of and dependence on groundwater controlling overdraft and regulating underground supplies differ widely from one location to another. water storage, are organized on a local scale, often by This combination of factors prompts a consideration special governmental units. Many of these functions of institutional arrangements and intergovernmen- are performed by these governments, and this report tal relations in water resources, an important concern contains several examples of their work and the for the 1990s. coordination among them. This report contains contrasting perspectives on One of the more important roles that govern- groundwater use and management Among other ments could play is to change laws and policies that things, the report encourages consideration of gover- obstruct more efficient water use. This report identi- nance of groundwater resources in a federal system in fies important barriers and suggests changes that the substantive rather than organizational terms. state and federal governments could make to reduce incentives for water user behavior that is inconsistent Among the findings in the report is that the with water resource coordination. involvement of several governmental and non- The Advisory Commission on Intergovernmen- governmental bodies does not necessarily preclude tal Relations is pleased to offer this contribution to the effective water resource coordination. In several consideration of how to improve the management of instances, it reflects the coordinated activity of func- groundwater supplies in the United States. tional specialist organizations, with extensive intergovernmental cooperation in dealing with the multiple attributes of groundwater resources. Different Robert B. Hawkins, Jr. organizational forms have been effective,suggesting Chairman

U.S. Advisory Commission on Intergovernmental Relations v Acknowledgments

William Blomquist, Assistant l?mfessor of Political of Reclamation. Staff members of U.S. Rep. Andrew Science at Indiana University was the principal investi- J. Jacobs, Jr., of Indiana and Rep. George Miller of gator for this project and the author of this report California, and Sen. Richard Lugar of Indiana ACIR is grateful to the following individuals who provided information on legislative develop- reviewed and commented on the study: Roy Arnold, ments. Their assistance is appreciated. Julie Baker, Bruce L Bandurski, Ray Beurket, Enid At ACIR, the project was directed by Bruce D. Beaumont, Judith Burrell, Don Chery, Jr, Jo Clark, McDowell, Director of Government Policy Research. William G. Colman, Tom Curtis, James B. Hyland, Joan Casey edited the report for publication, and Louise Jacobs, Kent Jeffreys, Rick Kuhlenberg, Steve secretarial assistance was provided by Lori Coffel and Light, E. Blaine Liner, William Lord, Daniel R. Suzanne Spence. Mandelker, Ardith Maney, Marian Mlay, Debra Nes- The Commission and its staff are grateful to bitt, Edith Page, Eugene Patten, Ken Rubin, Michael Professor Blomquist and to all who provided assis- Rubino, R. I? Shimer, Ethan T Smith, Tom Schwa&erg, tanceon the report,but retain full responsibility for its Alex Varela, and Thomas Wehri. contents Others who read and commented on portions of the report include Ronald J. Oakerson, Elinor Ostrom, Vincent Ostrom, and reviewers from the John Kincaid U.S. Army Corps of Engineers and the U.S. Bureau Executive Director

vi U.S. Advisory Commission on Intergovernmental Relations U.S. Advisory Commission on Intergovernmental Relations vii Contents

Findings and Recommendations ...... 1 Findings ...... 1 1. Significant Water Supply Problems Exist in the United States, and Groundwater Is an Element of Many Such Problems...... a...... 1 2. United States Water Problems Are Largely Problems of Coordination and Incentives, Rather than Problems of Scarce Natural Supplies...... , , ...... , . . . . 1 3. Groundwater Potentials for Helping to Meet America’s Water Needs Have Not Been Fully Considered...... 2 4 Coordinated Management of Underground and Surface Water Resources Offers Great Potential for Helping Solve Many of America’s Water Supply Problems 2 5. Success in Coordinating Surface and Underground Water Supplies Rests, to an Important Degree, on Adequate Protection of Water Quality...... 2 6. Properly Coordinated Water Resource Management Requires Intergovernmental and Interagency Cooperation, and Does Not Necessarily Require “Consolidation” of Responsibilities...... 3 7. There Are Several Barriers to Improved Water Resource Use and Coordination in the United States ...... 3 8. Despite Many Barriers to Success, There Are Promising Examples of Water Resource Coordination in the United States ...... 4 Recommendations...... 4 1. Encouraging Better Coordinated Governance of Water Resources ...... 4 2 Providing Incentives for, and Removing Institutional Barriers to, the Coordinated Use of Water Resources ...... 5 3. Facilitating Improved Water Resource Use and Protection through Research, Information, and Broadly Trained Water Resource Managers ...... , ...... 6

Chpter 1 - Groundwater and Intergovernmental Relations ...... 9 Scope and Purpose ...... 10 Conjunctive Management and Integrated Management: An Important Distinction ..... 10 Other Studies ...... 10 The Plan of this Report ...... 11

Chpter 2 -The Value and Use of Groundwater ...... 13 The Value of Groundwater Resources ...... 13 Groundwater as a Source of Water Supply ...... 13 Groundwater Basins as Sources of Water Storage and Distribution ...... 16 “Quality is Quantity”: The Importance of Protecting Groundwater Resources ...... 17 GroundwaterUse ...... 18 A “National Groundwater Problem”? ...... 18 Where Is Improved Management Most Needed? ...... 22

viii U.S. Advisory Commission on Intergovernmental Relations Summary ...... 23

Chapfer3-The Concept and Practice of Conjunctive Management ...... 27 The Concept: Maximizing the Value of Water Resources ...... 27 The Variability of Surface Water Supplies ...... 27 Regulating Surface Variability with Underground Storage ...... 27 Uniting Alternative Sources of Supply ...... 28 Underground Transmission ...... 28 Conjunctive Use and Conjunctive Management ...... 28 Defining Conjunctive Management in Substantive Terms ...... 29 Controlling Overdraft ...... 29 Regulation of Storage ...... 30 Protection of Quality ...... 31 Distribution of Costs ...... 31 Adaptability ...... 31 The Practice of Conjunctive Management: Case Studies ...... 31 Centralized State Administration: The 1980 Arizona Groundwater Management Act ... 32 Interjurisdictional Coordination: Los Angeles County California ...... 36 Intergovernmental Contrads: The Solano Project ...... 40 Appropriation Permits, Offsets, and a “Water Czar”: The New Mexico State Engineer ... 42 Interstate Competition and Interstate Coordination: The Delaware River Basin ...... 44 Interlocal Coordination ...... 45 Additional State and Local Innovations ...... 47 Lessons Learned ...... 49 Chapter 4- Understanding the Organization of Water Resource Management ...... 55 A Complex Water Economy ...... 55 The Role of Special Water Districts ...... 59 Private Suppliers in the Water Economy ...... 61 The Role of Associations ...... 61 Adjudications and the Rights of Providers and Producers ...... 62 Regulators in the Complex Water Economy: The Protection of Water Quality ...... 63 TheRoleoftheStates ...... 65 StatesasRegulators...... 65 States as Water Suppliers ...... 67 States as Rulemakers ...... 67 States as Policy Innovators ...... 67 The Role of the Federal Government ...... 68 A Supportive Federal Role: Information and Technical Assistance ...... 68 The Federal Government as Water Supplier ...... 71 The Federal Government as Regulator ...... 72 Summary ...... 73

Chapter 5- Water Resource Management: Problems and Barriers ...... 79 Lack of Definition and Transferability of Production and Storage Rights...... 80 State Water Rights Laws ...... 80 Legal Separation of Surface and Groundwater Rights ...... 82 Rights to Store and Recapture Water ...... 83 Authority for Conjunctive Management Agencies ...... 84 Problems of Unspecified and Latent Rights ...... 84 Lack of Transferability of Production Rights ...... 89 Distortions Created by Water Subsidies ...... 95 Lack of Information Distribution ...... 98 Summary ...... 99

U.S. Advisory Commission on Intergovernmental Relatiions ix Chapter 6-Modifying Intergovernmental Relations in Water Resources Management: Whether,Why,andHow...... 105 Applying Concepts and Lessons Learned ...... a...... 105 The Concept of Scale, the ‘lhsks of Conjunctive Management, and Multiple Jurisdictions . . . 106 Protection of Groundwater Quality A Different Set of Roles and Relationships? .s..... 110 Ending Subsidies, Increasing Information, and Supporting Quality Protection: What the Federal Government Can Do ...... *...... *...... 116 Changing Water Rights Laws, Encouraging Basin Management, Setting Quality Protection Policy. What the States Can Do ...... * 123 Getting the Prices Right: What Local Public and Private Water Organizations Can Do ...... 124 Summary ...... *...... 125

Appendix A - Tables ...... 129 Table A-l - Groundwater Withdrawals as a Percentage of All Water Withdrawals, 1985 .... 130 T’bZe A-2 - Groundwater Withdrawals Per Capita Per Day, in Gallons, 1985 ...... 130 Table A-3 -Percentage of Population Served by Groundwatel; 1985 ...... 131 TubleA4-Percent of Public Water Supply from Groundwater Withdrawals, 1985 ...... 131 TubleA-5- Percent of Withdrawals for Industrial Use from Groundwater, 1985 ...... 132 Table A-6-Percentage of Withdrawals for Irrigation from Groundwateq 1985 ...... 132

Appendix B-Bibliography ...... 133 Figures Figure 21 -Underground Aquifers in the United States ...... 14 Figure 22 -Average Annual Precipitation in the United States ...... 20 Figure 2-3 - Groundwater Dependency in Selected States, 1982 and 1985 ...... 21 Figure 2-4-Simplified Water-Resources Budget for U.S. Water-Resources Regions, 1980 ...... 22 Figure 3-1 -Active Management Areas and Irrigation Non-Expansion Areas in Arizona ...... 34 Figure 3-2 -Simplified Pictorial Representation of Conjunctive Management in Los Angeles County, California ...... 39 Figure 4-Z - Groundwater Research Expenditures, by Federal Agency and Program Category ...... 70 Figure 5-l -Comparison of Annual Utility Bills, 1950-1984 ...... 94

x U.S. Advisory Commission on Intergovernmental Relations Findings and Recommendations

FINDINGS assume that they can continue to do so without planning. 1. Significant water supply problems exist in the Asmostofthebestopportunitiesforimpounding United States, and nroundwater is an element of surface waters have been developed, and as environ- many such prbblem;. mental objections to new impoundments have grown, it has become increasingly difficult to expand surface water storage capacities. In the West, there are many arid areas and major Despite these problems, many regions of the population centers supplied from large water im- nation and many communities enjoy abundant water poundments created by the federal government As supplies relative to current and projected needs. development pressure has been placed on this finite Groundwater supplies, in general, are much larger number of impoundments, competition for this water than surface supplies, and groundwater supplies am has grown to great intensity At the same time, most of satisfying an increasing share of water needs in the thebest opportunities for impounding surface waters United States However, water resou~es differ so much have been developed already, and efforts to expand fromplacetoplacethatwaterneedsmustbeconsidered surface water storage capacities arr subject to increas- within the context of each region and each community ing costs and growing environmental objections. based on current and long-term prospects In areas with rapid growth and high dependence on groundwater, such as Florida, the land sometimes 2. United States water problems are largely prob- subsides when too much water has been withdrawn. lems of coordination and incentives, rather than Excessive ratesof groundwaterwithdrawal lower the problems of scarce natural supplies. water table and increase pumping lifts, energy use, and expense. In addition, coastal areas may experi- Overall, the United States is blessed with abun- ence infiltration of the groundwater by sea water as dant water resources. Surface supplies of water are the groundwater table is pumped down. great and have been augmented massively over the In New England and certain other places, there years. In addition, the nation’s groundwater supplies have been highly publicized cases of groundwater are many times as great as its surface supplies. contamination by toxic chemicals and other pollut- In areas where adequate water supplies have ants Contamination can leave groundwater supplies not been available naturally, public works projects unusable or subject to the need for treatment, which have brought water from great distances to meet generally has not been provided for groundwatel As growing needs, and even to create new uses for a consequence, new federal groundwater quality water in those areas. protection regulations have gone into effect, requir- Still, demand for water sometimes outruns supply. ing state groundwater planning and regulation. Crops that need great amounts of water are grown in In most parts of the nation, groundwater and arid areas Urban dwellers fail to conserve water: surface water resources are usually managed sepa- Irrigation techniques too often let a high portion of the rately. Most communities have only a single source of water escape into the air or ground without benefit water supply, and are highly vulnerable in times of Underground and surface waters are seldom managed drought or other catastmphe. Alternative supplies on an in conjunction with one anothe4 despite the potential adequate scale would not be available in the short run for these supplies to augment and complement each Most water supply planning has been done for other: Abundant gmundwater supplies, in some cases, surface waters. Most places that use groundwater have been polluted to the extent that they have had to

U.S. Advisory Commission on Intergovernmental Relations 1 be left unused. Water rights, under present laws in some Where groundwater and surface water supplies can be places, allocate abundant amounts of water to certain physically interconnected, a broad consensus has devel- uses while denying it to others oped in favor of optimizing efficiency in resource use If these problems are to be addressed, water through the coordinated management of surface water resources must be managed effectively and effi- supplies and storage with groundwater supplies and ciently. Intergovernmental and interagency coor- storage. This coordination takes account of the value dination mechanisms and processes, as well as and the limitations of both sources of water incentives for cooperation, have been useful in The following performance goals are part of addressing these problems. coordinated water resource management systems: (1) control of overdraft, (2) regulation of storage capacity 3. Groundwater potentials for helpingto meet Ameri- and water in storage, (3) assignment of costs, (4) ca’s water needs have not been fully considered. adaptability, and (5) protection of water quality. Well performing water resource management systems Groundwater resources are of irreplaceable val- that meet these goals contribute strongly to the ue to the United States. Groundwater now provides attainment of the general performance goals of approximately 20 percent of all U.S. water withdraw- efficiency, equity, adaptability quality, adequacy, and als, and supplies part or all of the drinking water for sustainability of supply. approximately 50 percent of the nation’s population. Coordinated management of groundwater sup- In addition, underground water basins provide a plies necessarily broadens management consider- low-cost, high-quality means of water storage and ations beyond those of managing the supply of water transmission with potentially increasing value as in a groundwater basin alone. Water storage and use above-ground water storage and transmission facili- of the storage capacity of surface and underground ties grow more costly, both economically and envimn- reservoirs, surface water availability and use, and water mentally Even in areas where surface water provides quality protection all become elements of the manage- an adequate primary supply, groundwater may be ment system As a result, the information requirements available for use as an alternative supply in cases of of coordinated water resource management are espe- drought, pollution, or other primary supply loss cially high, and include not only hydrologic informa- If groundwater is accurately quantified,allocated tion but close knowledge of changes in resource among users, managed well, and replenished faith- conditions as well as information on water quality fully, it could become even more significant in conditions and risks associated with contamination meeting America’s water needs. Unfortunately many groundwaterbasins have been neither quantified nor 5. Success in coordinating surface and underground allocated among the users with a claim on them, water supplies rests, to an important degree, on ad- including the reserved rights on federal and Indian equate protection of water quality. lands. In addition, sound planning and management of groundwater is more the exception than the rule. The importance of water quality protection deserves special mention because of its relationship 4. Coordinated management of underground and sur- to effectivesupply management. While surface water face water resources offers great potential for helping quality has improved over the last two decades, solve many of America’s water supply problems. groundwater contamination is a serious and growing problem in many communities in the United States. The overall goal of coordinating the allocation, Groundwater quality degradation not only poses risks storage, conservation, and use of underground and to human health and to the animal and plant life of surface waters is to optimize the performance of total water ecosystems, it also creates imposing challenges water resource systems in meeting the needs of a for the coordinated allocation, storage, conservation, population and sustaining the natural environment. and use of surface and underground water supplies This type of management requires multi-objective The relationship between water quality and performance goals and performance measures to water supply is captured by the expression “quality is guide the actions of multiple providers and users of quantity”; that is, deterioration in the quality of water water. These goals and measures should apply equal- can render it unusable as a source of water. There has ly to groundwater and surface water resources. been considerable federal, state, and local activity The following performance goals apply to water over the last two decades intended to protect and supply management systems generally: (1) efficiency in restore groundwater quality, but much remains to be resource use and in administration of the management done. The information requirements of groundwater system, (2) equity in the distribution of costs and protection are high-especially with respect to risk benefits, (3) maintenance of acceptable water quality, (4) assessment that relates levels of contaminants to effects ensuring long-term sustainable yields, and (5) adapt- on human health Capital and technical requirements ability to meeting changing conditions and needs of water quality protection also are high.

2 U.S. Advisory Commission on Intergovernmental Relations The appropriate configurations of intergovern- tional innovations can contribute to improved water mental roles and relations for protecting groundwa- resource coordination. There is no presumption in favor ter quality may be different from those involved in of any one organizational form or set of interorganiza- managing water supplies. The leadership role of the tional agreements for improving the performance of federal and state governments has been, and is likely water management systems everywhere. Indeed, when to remain, greater than local governments in protect- the opportunities provided by a federal system for ing groundwater quality. Still, coordinated use of devising decisionmaking pmcesses are coupled with surface and groundwater supplies cannot proceed the variety of water supply conditions across the United without taking account of water quality protection. States, there is a presumption in favor of diversity in the Coordinated water resource management must, at a organizational forms and intemrganizational arrange- minimum, ensure that water quality is not harmed; at ments for managing water supplies This finding a maximum, it should contribute to the protection and reinforces the importance of maintaining a focus on the enhancement of water quality. Nevertheless, as the performance of management systems, rather than on experience of several states demonstrates, water particular organizational forms quality protection and water supply management do 7. There are several barriers to improved water re- not have to be completely integrated organizational- source use and coordination in the United States. ly for each to perform well. The principal barriers to successful coordination of 6. Properly coordinated water resource manage- water resources are lack of institutional flexibility and ment requires intergovernmental and interagency leadership for effective participation in intergovem- cooperation, and does not necessarily require “consolidation” of responsibilities. mental management processes, the diversity and inflexibility of water rights laws, inadequate and dysfunction- al incentives for efficiency in water use, and inadequate Attention to the coordinated management of research, information, and training support for im- surface water and groundwater supplies,with a view pmved water resource coordination practices to improving the performance of water resource With respect to institutional inflexibility and lack of systems, requires a recognition of “the boundary leadership, it is important to recognize that tesponsibili- problem.” The boundaries of existing political juris- ties for water supply generally are separated from dictions- especially general purpose jurisdictions, responsibilities for water quality Within the realm of such as municipalities, counties, states, and the water supply, institutional responsibilities for ground- nation-often do not match the boundaries of water and surface waters are also generally separate. In groundwater basins or of interrelated surface water addition, the interests of water providers and users may and groundwater systems. This is an inherent charac- be different Finally the local, state, and federal govem- teristic of natural resource systems. merits have separate responsibilities with respect to Fortunately, the American federal system pro- both water supply and water quality vides opportunities for instituting public decision- These divisions have advantages and disadvan- making processes on scales more nearly conforming tages. The advantages lie in promoting the entrepre- to those of a given natural resource system and its constituent elements. In many areas of water supply neurial spirit, advocacy for better service provision, management, new jurisdictions have been created to and maintenance of a program focused on control of encompass some part or all of a water supply system. the source of pollutants. The disadvantages are in the In other cases, intergovernmental arrangements - lack of coordination and long-term respect for sus- such as compacts, commissions, agreements, and tainable supplies and ecologies. stipulated adjudications - have been devised among The diversity of jurisdictional boundaries multi- existing jurisdictions that share a water source. Often, ply the divisions of basic interests. Groundwater both the creation of new jurisdictions and the devel- basins and surface watersheds do not always exactly opment of intergovernmental arrangements have coincide, while city, suburb, and rural districts com- been employed in the design of water supply man- pete politically for the use of the same water re- agement systems. This degree of public entrepreneur- sources. Single-minded water districts sometimes ship has been coupled with considerable private promote one concept of water use, while general entrepreneurship in the water supply field. Altogeth- purpose governments support another er, the many organizational forms (private as well as The larger coordination issues too often lead to public) and interorganizational arrangements for confrontations over who is right-win or lose-rather water provision, management, and regulation have than to efforts to accommodate diverse interests come to constitute a complex “water economyF within a shared water resource basin. Arenas for Although none of these various forms and arrange- resolving water issues include the courts, political ments axe cost free, problem free, or error fme, there is forums, and administrative processes, Strong politi- considerable scperience on the record that such institu- cal leadetship often is necessary to resolve key issues

U.S. Advisory Commission on Intergovernmental Relations 3 It is clear in many water resource basins that of water. Howevecrecent U.S. Supreme Court cases basinwide intergovernmental coordination bodies make it clear that water is an article of interstate with real governing authority over surface and commerce subject to preemptory regulation by underground water resources, sometimes shared federal law, and that state constitutions and laws with state and sometimes with federal authority, are may not burden the transfer of water across state needed. Interstate cornpads -such as the Delaware, lines except in certain narrow respects. On this Susquehanna, and Potomac compacts -offer a range basis, groundwaters in Nebraska and New Mexico of models to consider in establishing additional have been allowed to be exported to neighboring compacts where there are recognized needs for them. states in contravention of the laws of Nebraska and With respect to water rights, some rights run with New Mexico. In addition, the U.S. Supreme Court the land as a property right others are appropriated has upheld conditions attached to federal spending proportionately in accordance with established agree- on water projects as valid exercises of the Constitu- ments and pmcedurrs; and still others aw relatively tion’s spending power. Bills have been pending in illdefined. Sometimes, water rights determinations arr Congress since 1987 that would impose compre- a matter principally for the courts; at other times, they hensive federal groundwater management re- are regulated in accordance with planning pmcesses quirements on state and local governments. Al- and administrative determinations Thus, water rights though these requirements would apply only to the are more flexible and more amenable to adjustment and 17 “reclamation states” in the West, hints have coordination in some cases than in others surfaced that such requirements might be extended Water use incentives also vary considerably Some nationwide at a later time. If such legislation, or its promote greater use, while others promote conserva- implementing regulations, were to require inflex- tion. Often, existing incentives werr established many ible institutional and regulatory forms and practic- yegrs ago under different cimnnstances, and may be es,itcouldsubstantiallyrestrict theauthorityofstate due for reevaluation In many cases, however, these and local governments to find innovative and practical incentives are established by law, reinforced by solutions to their water resource problems long-time practices, and difficult to change. 8. Despite many barriers to success, there are prom- Many water supply policies in the United ising examples of water resource coordination in States - federal,state,and local -were designed for the United States. different phases of the nation’s history. Those were times when policies promoted water development, This report has reviewed a number of precedents agricultural expansion, and the settlement of new for enhancing coordinated management of surface lands, times when the nation’s population and and underground water resources. Cases studied commerce were concentrated in the humid East, include the 198OArizona Groundwater Management andtimeswhen highqualitywaterwasavailablein Act, interjurisdictional water resource coordination in such abundance that little attention was given to Los Angeles County, California, coordinated man- metering its use and pricing it according to its agement of surface and underground waters by replacement cost. Although past investments and contract in Solano County, California, appropriation settled expectations cannot and should not be permits and controlled water mining in New Mexico, ignored, improved water resource coordination interstate coordination in the Delaware river basin, requires, as a first step, acknowledgment by all and interlocal coordination in two California loca- partners in the federal system that times have tions as well as in metropolitan Washington, DC changed. Present policies that directly or indirectly None of these examples are perfect, or even compre- encourage water consumption over water conser- hensive, but each offers practical potential for im- vation may need to be revised. Water supply proving the coordination of water resource alloca- subsidies, in particular, need to be reconsidered. In tion, storage, and use to meet current needs. addition, water policies that favor solving problems by using construction and technology to alter natural phenomena - rather than by altering laws, RECOMMENDATIONS policies, and institutions-need to be examined further as to their efficiency, cost effectiveness, and Recommendation 1 ability to meet the dual goals of environmental ENCOURAGING BETTER COORDINATED protection and adequate water supply. GOVERNANCE OF WATER RESOURCES Particular note should be taken regarding cur- The Commission finds that substantial benefits rent and potential federal roles in water resource in water resource availability, efficiency, quality, and allocation, conservation, and use. Generally, feder- equity can be gained in many cases through the al laws have shown great deference to state laws in coordinated allocation, storage, and use of surface appropriating water rights and interstate transfers and underground water resources. However, the

4 U.S. Advisory Commission on Intergovernmental Relations boundaries of water resource systems (whether sur- coordinated use programs of these interstate mechartisms. face water systems, groundwater systems, or hydro- Except in clear instances of violation of federal laws or the logically interconnected surface and groundwater United States Constitution, no fideral ofjicial or agency systems) often do not coincide with the boundaries of s!wuld be autlwrized to withhold participation in or to veto a existing general purpose governments. coordinated water resource use prqram established by Several innovations have been undertaken in interstate agreement. bztersfafe water resource coo&nation recent decades to coordinate the use of surface water mechanisms should be(a) established pursuant to negotiations supplies and storage with groundwater supplies and among the parties affecten; (b) selfperning: (c) dided by storage. These innovative cases of coordination have representatives of affected state and local governments, the employed admini&ative and nzgulatory approaches, federal governments, and water users; (d) self-financing to the intexjurisdictional compacts and contracts, and the extent possible; and (e) empowered to fake ef@tive action creation of specially organized jurisdictions. No within the scope of responsibility agreed to. 7Ie Congn?ss and single model appears to be preferable in all respects the President should encourage the negotiation and -al and under all circumstances for improving the coor- offtieral-interstate compacts in wafer resource basins where dination of water resources. Relatively self-govern- fhe states quest them. ing systems developed by water users and local and state governments appear most likely to achieve the C. Independent Groundwater Systems high levels of participation and compliance neces- ‘sary for successful implementation. Because not all groundwater systems aye physically infercunnected with sur@ce wafer systems, or capable of being A, State Action on Water Resource Coordination interconnected, the Commission recommends that state government oficials support and encourage the Aevelopment of mechanisms for governing isolated groundwater basins ‘Ilre Commission recommends, therefore, that state within the states, and that Congress authorize andapp”Tue the government ofJicials support and encourage coordinated creation of interstafe mechanisms for governing isolated of use water Tesources within their borders. Coordination groundwater basins that cross stateboundaries. Thesegovern- mechanisms, which may include inferjurisdictional ar- ing mechanisms should be empowered to take all actions rangements as well as the creation of new public jurisdic- necessary fo regulate basin yield and storage capacity, and tions, should be empowered to undertake the range of should be self-governing and selffinancing. functions necessary to coordinate the allocation, conservation, storage, and use of surface and underground water LX Aderal Restraint supplies, where coordinated use is appropriate. To the maximum extent feasible, in order to ensure sustainable Because of fhe diversity of state and local government programs of water resource developmenf, use, conserva- structures and responsibilities, as well IIS the diversify of tion, and protection, these coordination mechanisms should water rights and water resources situations, the Congress be self-governing, directed by the water users themselves and the Execu tive Branch should not imposeanyparticular and the affected local and state officials. To fhe extent management form on states and local governments, feasible, thesegovernance strucfures should be serffinanc- whether through mandates or through condifions on ing, with costs assigned among the bent$ted water users participation in federal programs. Furthermore, the Con- and localgovernments, and withfinancial participation by gress and the President should not preempt the water thestates to the extent that benefits are statewide. resource programs of local, state, or regional governing mechanisms, and should not institute direct federal man- B. Interstate Regions for Water Resource Coordination agement ofgroundwater supplies and storage capacify.

Because many systems of sur/ace and undeqround Recommendation 2 water ESOUIWS extend beyond state boundaries, the P ROVIDING INCENTIVES FOR , Commission recommends that the Congress authorize AND R EMOVING I NSTITUTIONAL BARRIERS TO, and approve the creation of interstate regional mecha- THE COORDINATED USE OF W ATER RESOURCES nisms, including joint federal-infers ta te compacts, for governing the coordinated use of suTface water supplies The Commission finds that, in most cases, what and storage with groundwater supplies and storage, stands in the way of providing adequate water where such coordinated use is appropriate. These inter- supplies is not so much the absence of water as the state mechanisms, which will necessarily include inter- presence of legal constraints and inflexible or inap- jurisdictional arrangements as well as new public jurisdic- propriate administrative practices that hinder the tions, should beempowered to undertake the rangeoffrt nctions conservation of those supplies, the coordinated all@ mcessaq to achieve coordinated use and conseruntion. cation of surface and underground waters in accor- Federal agencies involved in the operation offederal surface dance with changing needs, the protection of impor- water pn$cts should be directed to cooperate with the tant water-based environmental values, and the

U.S. Advisory Commission on Intergovernmental Relations 5 resolution of conflicts over water use. In most cases, C. Resolving Disagreements among Meral Agencies marginal adjustments in patterns of water use could significantly help alleviate shortages, resolve con- The Cangress and the President should legislate aprocess flicts, and protect environmental values. fir n?solm’ng disagnxments among federal agencies concerning local, state, or rt@onal pmgrams for the use of surfac The Commission recommends, therefore, fhefollowing water supplies and storage as well as groundwater supplies actions designed fo remove institutional barriers to coordi- and storage, including proiect to facilitnte coordinated use. nated allocation, use, storage, and conservation of surface This dispute resolution process should be az~ailable upon and underground water resources: quest by an affecten state, local, or regional itnit of goziernment tJtnt is a parlicipant in the planned mm or A. Systematizing State WaterRights Provisions pmject. The Congress should designate the [Attorney General] to convene theaff2ctedfederal agencies and oversee the dispu te Sfates not currently employing water management tffolution process. Tile disptc fe resolution pmcess should be systems that assign and qua?ttify zznter rig1rts sltozrld mnpleted within a specified numberof days established by the consider doing so as soon as possible in order to facilitate conzlenor in consultation utith the a#&d parties. improved use, monitoring, and conserzlation of surface and undqound wafer supplies. D. Authority for Interjurisdictional Arrangements for States that do not allozo wafer users to store, conserzle, Federally Contracted Water and recapture quantified amounts of water underground should consideraddingsuchprovisions to their waterrights The Congress and the Executive Branch should remove laws, in order to improve the coordinated use of surface re&ictions in new or existing federal contra& with local wafer supplies and storage capacity with groundwater irrigation and other water districts flat prPuent those local supplies and storage capacify. Appropriafestate, local, and water districts j?om enteting info interjurisdictional ar- regional governing au Niorifies should be empowered, either rangements for the coordinated use of water resources singly orjointly, to monitor undqound wafer storage, to zoithin the project area. regulafe water storage and zoithdrawals taken ther#rom, E. Water Use and Conservation Incentives and to establish conservation-oriented prin’ng policies to protect the interests of all users of the water supply system. States that hazje not united their su$ace water and The federal goz~ernment should continue to decrease groundzoater rights systems should consider doing so in the subsidization of the water it supplies. Ultimately, water order to establish coordinated rights throughout urater users should pay the full construction, mainfenance, and supply sysfems and to facilitate the coordinated use of operation costs of federal water supply projects. When surfizce water and groundwater supplies. water supply contracts are renewed by the Bureau of In addition to quantifying zoater rights, states that Reclamation, they should contain provisions to decrease have not already done so should consider making water subsidies over time in order to allow for manageable rights transferable for compensation, within water supply adjusfments in water use practices by irrigators. systems, in order to enhance fhe efficient use of water State and local governmenfs that finance and operate resources by rewarding water rights owners for conserva- wafer supply projects should place the construction and tion rather than maximum use. The local, state, orregional operation of such projects on a “user pays” basis to the governing authorities responsiblefor the coordinated use of extent practical. water resources should oversee and administer such Local water suppliers should implement full-cost transfers in order fo minimize adzterse impacts on private pricing of water to consumers to the eaten t practical. Where property. In order todiscollragespeczllntion in waterriglzts, metering of water use by households and businesses does not transfers should be approved only upon a showing of occur it should be institutedso that households and businesses demonstrable needs of the trmsferee. can be charged water rates that bear a direct relntionship to tlreir zoater use. Where necessary, “lifeline rates” should be B. Quantifying li?deral and Indian Water Rights instituted to protect lozi+inane households.

The Congress and the President should direct the Recommendation 3 of of Secreta y the Interior to complete the quan fijication FACILM-ATING IMPROVED federal reserved water rights pursuant to state procedural WATER RESOURCE USE AND PROTECTION Iaur, in order t/tat water resources coordinntion may proceed in an atmosphere of certainty rather than uncertainty. THROUGH RESEARCH, INFORMATION, ‘Lhe reserved water rights of the Indian tribes that AND BROADLY TRAINED remain unquantified should be quantified through direct WATER RESOURCE MANAGERS negotiations betzoeen tribal representatives and affrcted The information and technical requirements of parties, including local users, states, and the federal coordinated water resource use are substantial. Tech- government, and other parties at if&rest. nological developments and innovations in water

6 U.S. Advisory Commission on Intergovernmental Relations resource use, conservation, and protection are devel- Federal and state agencies should continue their oping rapidly, and the dissemination of information extensive and successfil cooperation in developing infor- does not always keep up with the pace of change. mation about water conditions, and should also collect Many water resource managers are inadequately information concerning mechanisms and prac tices govern- trained and equipped to use the most current con- ing the coordinated use of surface and underground water cepts and techniques of coordinated water resources supplies and storage. management Programs of research and technical The federal government should continue to pursue an assistance to water system managers concerning aggressive program of research info the extent and effects of coordinated use practices and groundwater quality groundwater contamination, including the determination protection requirements would help raise the level of of safe levels of contaminants in drinking watet; and fhe competence in water resource programs. program of support and technical assisfance to states in the The Commission recommends, theref0re, continuation development and implemenfafion of groundwafer quality of federal programs that increase knowledge concerning protection policies. water supply and water qualify, and that extend informa- States should require assessment of thegeological and tion to state and local oficials and to other citizens. These hydrological propriety of proposed or possible landjill sites, programs should include research, data management, in order to provide the information base for responsible assistance with problem identification and policy analysis, siting decisions based on thean ticipafed effects of a proposed technology transfq and training. landfill on water quality.

U.S. Advisory Commission on Intergovernmental Relations 7 8 U.S. Advisory Commission on Intergovernmental Relations Chapter 1 Groundwater and Intergovernmental Relations

Waterpolicy and organizatiotl is basically a prob a nationwide nondegradation standard to replace lem in inteqqnwrnmental relations. . . . [P]oUcy variability in state programs, and federal require- and organization issues posefundamental prob ‘merits of major new statewide planning efforts for the lems thatstrikeat thevery heart of ourfederal sys- allocation and management of groundwater sup- tem of government.1 plies. In 1982, the United States Supreme Court Issues of groundwater management have re- opened the door to direct federal regulation of ceived increased attention in recent years. Despite an groundwater supplies, ruling that groundwater is an abundance of water resources nationwide, there are article of interstate commerce and striking down problems of scarcity and contamination in many certain state regulations restricting its export places. These problems have generated dramatic These issues and trrnds share two common themes fights over water rights involving cities, industries, The first is that there has been and remains an acute farmers, state and federal agencies, and Indian tribes. need to develop and implement improved techniques Increased reliance on groundwater for consumptive and institutional arrangements for the management of wateruses has been accompanied by projections that gmundwater resources The second is that the develop- underground supplies in several places either will be ment and implementation of any such improvements depleted or will become too expensive to reach must occur within the federal system, thereby engaging within a few decades. Some states have developed additional considerations of the roles and relationships regulatory and other efforts to shift water supplies of the federal, state, and local governments among uses. Competition for additional water re- Charles Corker, a professor of law at the Universi- source development projects has intensified while ty of Washington and long-time participant in west- funding has been restricted, cost-sharing require- ern water issues and struggles, once wrote of “two of ments have been raised, and concern about the the most difficult problems with which people in the envimnmental impact of large-scale projects has United States must live. One is water, the other is reached new heights. As the repoting of incidents of federalism.“2 He continued, “Water, even uncompli- water contamination has mounted, one alarming case cated by federalism, nurtures controversies which are on anotheq gmundwater quality protection has also both long and bitter . . . [I]t has frequently been nip em@ into the limelight and tuck whether differences of opinion would be In the past decade, several changes have been resolved by briefs or by bulletsu3 Groundwater in made or proposed concerning federal and state roles particular, with its uneven distribution, irregular and actions with respect to the management and boundaries, and multiple attributes as source of supply protection of water resources, and of groundwater in and storage, “will test our federal system of govem- particulac Suggestions have included calls for federal ment”4 Coordinating gmundwater use, allocation, and leadership through enactment of a national ground- pmrvation is a challenging task, which “may include water policy, calls for the federal government to act international, national, inteM.ate-rtzgional or major with state and local governments in a “new partner- river basin, state, intrastate river basin, county, and local ship,” and several federal legislative and regulatory boundaries and jurisdictions”5 proposals to address specific aspects of water re- While federalism complicates the water resource management Proposals introduced in recent source management picture, this report attempts to sessions of the Congress include the establishment of look beyond the complexities and search for the

U.S. Advisory Commission on Intergovernmental Relations 9 opportunities created by a federal system. Our storage capacity. The terms used here do nof refer to interest is not only in whether and in what ways the the management, protection, or restoration of water federal system presents obstacles, but also in quality (except to the extent that management practic- whether and in what ways the system provides es should not result in the deterioration of water advantages for tailoring institutional arrange- quality, a sort of “first, do no harm” criterion). ments forwater management to enhance perform- In the literature reviewed for this report, the term ance, accountability, and citizen control. ‘integrated management” was used in a couple of On the other hand, much of the structure of sources and “unified management” was used in intergovernmental relations in the water resource another source to convey what is described here and field evolved during a period when the primary elsewhere as conjunctive management Integrated policy emphasis was on the development of supplies management, as used in this report (and elsewhere) In the past two decades, the emphasis has shifted to refers to the attempt to manage groundwater supply supply management and water quality protection. and groundwater quality as one effort. The term This shift in emphasis raises questions of whether the unified management is not used in this report Ground- roles and relationships among governments that water supplies may be managed together with surface may have worked for development are advantageous water supplies or not, and water supplies may be for management and whether the appropriate inter- managed together with water quality or not (There are, governmental relationships for water quality protec- of course, other possibilities: for instance, surface water tion might be different from either of these. quality and quantities could be managed togethes but gnnmdwater supplies and groundwater quality managed independently, and so on) S COPE AND PURPOSE Two principal approaches for improvingwater Other Studies resource management have come to the forefront of national attention, each of which presents complex engineering and management challenges In recent years, there have been numerous “even uncomplicated by federalism.” The first of studies devoted to groundwater supply conditions, these is the conjunctive management of groundwa- management,quality protection, and water resources ter supplies together with surface water supplies. policy, of which the following are only a few. In 1985, The second is integrated management of ground- the Urban Institute published a report on several state water supply and quality. initiatives in improving community water supplies,6 This study focuses on the institutional arrange- which described the changing role of state governments and relationships involved in the conjunctive ments in the water supply industry. management of groundwater and surface water In 1986, the Conservation Foundation’s National supplies. Although there will be attention to inter- Groundwater Policy Forum produced its influential governmental arrangements for protection of report Grourrdwnter: Sming tlte Unseen Resortrce, which groundwater quality, this report has to do primarily focused principally on protecting quality.7 The forum with maximizing, allocating, and preserving the was attended by representatives from the academic supply yield of gmundwater resources It is hoped that community; persons with technical and administra- this focus may contribute to an understanding of tive experience in groundwater development and intergovernmental roles and relationships in ground- management and local, state, and federal water management and that such an understanding policymakers. The forum’s report, which called for may help in adapting some of the information gained “Action Now” in groundwater quality protection, from hydrologic investigations, environmental man- recommended a “new partnership” among govern- agement studies, and water supply plans to improved ments in the federal system. resource management Also in 1986, the National Research Council’s Committee on Ground Water Quality released its Conjunctive Management report on state and local activities in the protection of and Integrated Management: groundwater qua1ity.r’ That report attempted to relate An Important Distinction the characteristics of groundwater resources to the proper roles and activities of state and local govern- As is the case in any specialization, terminology ments in their protection. It also highlighted individ- in water resources management can result in confu- ual state and local programs sion. In this report, the terms “conjunctive use” and In 1987, reports were prepared for the National “conjunctive management” designate the coonii- Council on Public Works Improvement on water nated use of surface water supplies and storage resource and supply! Each of these reports contained capacity together with groundwater supplies and considerable information on the organization of water

10 U.S. Advisory Commission on Intergovernmental Relations management and the water supply industry, along with ter resources, especially conjunctive management findings, conclusions, and commendations The chapter pays particular attention to the role of the In 1988, the United States General Accounting states and the national government Office (GAO) produced reports on its review of There follows in Chapter 5 a discussion of some groundwater quality protection among the statesJO of the barriers that remain to effective conjunctive These reports focused in particular on the drinking management of water supplies in the intergovern- water standards set by the U.S. Environmental Protec- mental setting. Again, particular attention is given to tion Agency (EPA), states’ use of those standards in state and national government practices that may water quality protection programs, and states’ adop- inhibit improved allocation and management tion of their own additional drinking water standards. In Chapter 6, possibilities for modifying the practic- Since 1983, the United States Geological Survey es and relationships of the national, state, and local (USGS) has published a NafionaI Wafer Summary, governments are considered, applying the concepts with each issue focusing on a particular concern. developed in Chapter 4 and the lessons learned from There has been one summary on groundwater sup- cases presented in Chapter 3 to some of the problems ply and on on groundwater quality identified in Chapter 5. Chapter 6 also includes the issue In 1989, The Urban Institute, in cooperation with of groundwater quality protection, in order to engage EPA, conducted an extensive assessment of the ground- the question of whether intergovernmental Elation- water protection strategies being developed by the ships for protecting groundwater quality in the Ameri- stat= The project was guided by a national advisory can federal system should be the same as or different committee composed of state officials and experts in the from those for managing groundwater supplies field The project also included a National Forum on Notes Groundwater Protection in October 1989 and produced a report entitled State ’ Lyle Craine, “Intergovernmental Relations in Water De- Management of Groundwafer: velopment and Management.” Presented at the South- Assessment of Practices and Progres~.‘~ ern Political Science Association Annual Meeting. Gat- As these reports indicate, much of the attention linburg, Tennessee, 1959, p. 1. given to groundwater management in the literature ‘Charles Corker, “Water Rights and Federalism-The in the past decade has focused on contamination and Western Water Rights Settlement Bill of 1957,” C~lijorornin the problems of protecting and restoring quality. Law Review 45 (December 1957): 604. Studies that have attended primarily to the provision 3 Ibid. (emphasis added). of water supplies-such as the ones prepared for the 4Neil S. Grigg, “Appendix: Groundwater Systems,” in National Council on Public Works Improvement and Kyle Schiing et al., ne Nution’s Public Works: Report on the USGS National Water Summaries-have inven- Water Resources (Washington, DC: National Council on toried and assessed the state of water resources, Public Works Improvement, 1987), p. B-5. including their sources, distribution, and use patterns. 5 Stephen J. Burges and Reza Marnoon, A Systematic Ex- amination ofIssues in Conjunctive Use ofGround and Surface Wafers. Water Resources Information System Technical The Plan of this Report Bulletin No. 7 (Olympia: Washington Department of Ecology, 1975), p. 6. Chapter 2 contains a discussion of the value of 6 Nancy Humphrey and Christopher Waker, Innovative groundwater resources as sources of supply and of State Approaches to Community Wafer Supply Problems (Washington, DC: The Urban Institute, 1985). storage and distribution. There also is an examination of groundwater use, including dependence of various ’ National Groundwater Policy Forum, Groundwater: Sav- ing the Unseen Resource (Washington, DC: Conservation areas of the United States on groundwater for differ- Foundation, 1986). ent uses, and where-and why-the limits of renew- * National Research Council, Committee on Ground Wa- able water supplies are being reached. ter Quality, Ground Water Quality Protection: State and Lo- Chapter 3begins with a discussion of the concept cal Strategies (Washington, DC: National Academy Press, of conjunctive management of surface and ground- 1986). water supplies as a method for maximizing the yield 9 Schilling et al., Report O?I Water Resources; Wade Miller As- and the value of water resources, and (at least sociates, 7’he Nation’s Public Works: Report on Water Supply potentially) alleviating some of the problems caused (Washington, DC: National Council on Public Works Im- by occasional shortfalls of supply. The chapter also provement, 1987). reviews and discusses several conjunctive use ar- lo U.S. General Accounting Office, Groundwater Quality: rangements by and between governments, and some StateActivities to Guard against Contaminants and Ground- water Protection: The UseofDrinking Water Standards by the of the advantages of a multijurisdictional system in States (Washington, DC, 1988). improving water resource management I1 See especially The Urban Institute, Proceedings oj the Na- Chapter 4 presents an organizing concept for tional Forum on Groundwater Protection (Washington, DC, making sense of the tremendous variety of interor- 1990), and State Management of Groundwater: Assessment ganizational arrangements for managing groundwa- of Practices and Progress (Washington, DC, 1989).

U.S. Advisory Commission on Intergovernmental Relations 11 12 U.S. Advisory Commission on Intergovernmental Relations chapter2 The Value and Use of Groundwater

The United States relies increasingly on ground- land surface range from 33,000 trillion gallons to water resources for water supply Groundwater ba- 59,000 trillion gallons.3 sins also have value as underground storage reser- To place this in perspective, the long-term renew- voirs and distribution systems, especially where they able water supply available (most of which is directly coexist with surface water supplies renewable surface water supplies) is about 1.4 trillion Patterns of groundwater use and dependence gallons per day4 Total fresh water withdrawals as of vary widely from one place to another Although 1985 were estimated at approximately 340 billion residents of some water-short regions have engaged gallons per day, or about one-quarter of long-term in groundwater supply management since the early renewable water supplies.5 Groundwater withdraw- decades of this century, the relative abundance of als comprised about 73 billion gallons, or just over 20 supplies in most places delayed attention to manage- percent of this daily totaL ment issues Recently, emerging localized shortages, Furthermore, the bulkof the water withdrawn for growing awareness of threats to quality, and increas- use each day (whether from surface or groundwater ing recognition of the irreplaceable value of ground- sources) is not actually consumed. Nearly three-fourths water resources have drawn greater attention to of the withdrawals come back as mtum flows6 Total issues of management and protection. consumptive use of water is estimated to be about 92 billion gallons per day, or appmximately 6.6 percent of total renewable supplies’ T HE VALUE OF G ROUNDWATER RESOURCES Clearly from a simple input-output, nationwide Understanding the value of groundwater review, there is no lack of water supply8 Particularly with sources involves placing them in the overall picture reference to the nation’s vast supply of groundwatec of water resources and use. Trends in availability and there appears to be real abundance. Total gmundwater use are enhancing the significant value of under- supplies are hundreds of thousands of times greater ground water supplies, storage, and distribution. than total daily consumptive use of water The thousands of trillions of gallons of gnnmdwater available Groundwater as a Source of Water Supply nationally are tapped each day for less than 75 billion gallons, not all of which is consumed Groundwater clearly represents an enormous Underground water basins appear throughout sourceofsupply,butinordertoassessitsvalueseveral the United States (see Figure 21). Generally, only the considerations must be taken into account besides the mountainous (and least populated) areas lack signifi- absolute quantity of water available and total use. cant groundwatec The vast majority of the nation’s Trends in total water use and consumption, ground- population lives and works in areas with readily water use and consumption, surface water availabil- accessible groundwater supplies ity, and concerns about quality all affect the value of Groundwater supplies far exceed surface water groundwater supply supplies, constituting over 90 percent (perhaps as much as % percent) of the total fresh water supply Increasing Water Use and the Growing Role of potentially available.’ The amount of “economically Groundwater. Fresh water withdrawals have in- accessible” groundwater (i.e., within reasonable creased substantially relative to population growth pumping distance from the land surface) is estimated since 1950. From 1950 to 1985, the population of the to be as much as 17,250 trillion gallons2 Estimates of United States grew by about 60 percent During the the amount of groundwater within 2,500 feet of the same period, total fresh water withdrawals rose by

U.S. Advisory Commission on Intergovernmental Relations 13 slpM 0) u!w/@ @ se qmw se pls!A Al~e~Ouat3 ~I!M isq~ rm)!nbe Aq u!e)Jopun eq 01 UMOU)( 80~ 0 nearly 100 percent, from about 175 billion gallons per as a less commonly contaminated soume of water day to about 340 billion gallons per day9 Daily water supply Reliance on gmundwater has gmwn for certain withdrawals per capita increased from just over l,KKl uses, especially for safe drinking water This trend may gallons in 1950 to about lb50 gallons in 1980. There is be expected to continue in light of constraints on surface evidence that water withdrawals and consumptive use supplies As a 1989 publication observed, “Groundwater stopped growing between 1980 and 1985,‘O but the over- already supplies over half the nation’s drinkingwater all trend has been an escalation in total water use. . . . and its share is rising as standards promulgated by Surface water supplies have been developed the U.S. Environmental Protection Agency eliminate more intensively than groundwater, and they are many surface ~ources.“~~ becoming increasingly scarce relative to the demands placed on them. One-fourth of the available fresh Protecting Surface Flows and Habitats. The United surface water supply each day is withdrawn for States is also nearing the limits of surface water of&ream uses When this is combined with concerns development because the supplies are subject to about water quality, the preservation of instmam instream uses and demands that limit their availabil- flows, and the environmental impact of new water ity for offstream and consumptive uses impoundment projects, it appears that the United First, hydroelectric power demands require ap- States is drawing relatively nearer to the limits of its proximately 3,050 billion gallons per day, dwarfing surface water development the total daily withdrawals of water for offstream and Therefore, groundwater supplies are being relied consumptive uses15 and dictating that much of the on to a greater degree. Since 1950, groundwater supplies nation’s surface water remain flowing in its channels have been developed more rapidly than surface water Second, and of growing significance, instream supplies, and withdrawals are increasing at a relatively flows are desired to meet demands for recreation, greater rate than surface water withdrawals for all habitat preservation, and scenic areas. Only surface purposes other than electric power pmduction.ll From water provides recreational opportunities, and those 1950 to 1985, surface water withdrawals increased by 85 who use the nation’s waters for those purposes are percent, but groundwater withdrawals grew by 115 interested in maintaining them. Diversions of surface percent As total water supplies remain fairly fixed waters to offstream and consumptive uses also can while demands increase, groundwater will continue to disrupt the natural environments of various forms of grow in value as a source of water supply fish and wildlife. Greater appreciation of this fact in recent decades has prompted actions directed toward maintaining sufficient stream flows and lake levels Water Quality Concerns and the Value of Groundwa- for aquatic life and surface animal habitats. Further- ter Supplies. The greater development of surface water more, the scenic beauty of some of the nation’s supplies; the location of major urban and industrial waterways has been recognized as a value worth concentrations adjacent to rivers, lakes, streams, and preserving. Legislative action to protect scenic water- estuaries; and the more direct vulnerability of surface ways can limit the diversion of waters waters to discharges and runoff containing harmful This set of social values that has emerged in the substances have rendered a greater proponion of last three decades affects water resource manage- surface water subject to repotted pollution and degrada- ment16 Groundwater resources,being outof sightand tion than has been the case for groundwater Indeed, the not per se the habitat of aquatic life, play an incmas- contamination of lakes and rivers was the focus of ing role in water supply nationwide. public attention as well as legislation and regulation during the 1960s and 1970s Groundwater and Consumptive Use. These limits By contrast, groundwater supplies remain more on surface water development and use mean that nearly pure. As of 1983, it was estimated that contami- groundwater, while representing about 20 percent of nation had reached between 1 percent and 4 percent withdrawals,constitutesconsiderably higherprwpor- of the usable groundwatei? A 1988 report by the U.S. tions of the supply for offstream consumptive uses In General Accounting Office (GAO) stated that in 92 addition to scenic, recreational, and habitat needs, percent of water well locations studied the quality of surface water supplies are relied on to a greater extent the groundwater exceeded federal safe drinking for less consumptive purposes water standards for every constituent element” The Hydroelectric power, for example, is generated GAO finding does appear to confirm that known with surface water and requires tremendous amounts groundwater contamination has been relatively lim- of it, but the water that turns the turbines returns to the ited. (This in no way denies the severity of groundwa- streams. In addition, water withdrawals for cooling ter contamination where it does occur, or that its purposes in thermoelectric power production consti- occurrence is increasing.) tute about one-third of the 340 billion gallons of daily Greater concern over water quality during the past fresh water withdrawals, but nearly all of the water three decades has incmased the value of gmundwater used in thermoelectric power production is surface

U.S. Advisory Commission on Intergovernmental Relations 15 water, and only 2 percent of it is consumed. When many places are connected with surface water sup- withdrawals for nonconsumptive thermoelectric plies The advantages of natural underground storage power cooling are subtracted from the total fresh and transmission, coupled with the limitations of water withdrawals, the surface water share for con- surface reservoirs, have increased the value of this sumptive uses declines to 65 percent and the ground- use of groundwater basins Indeed, in economic water share increases to 35 percent terms, there is evidence that this is the more valuable Groundwater constitutes a greater share of with- use of an underground water basinx These addition- drawals for the more highly consumptive uses of al potential uses of groundwater resources have water Groundwater constitutes 15 percent of with- given rise to new management possibilities drawals for industrial uses, for which the consumptive use rate is about 16 percent,” but 33 petrent of Total Capacity and Usable Storage Capacity. As withdrawals for irrigation and livestock watering for noted, the underground reserves throughout the which consumptive use is about 54 percent (with country contain immense amounts of groundwater another 17 percent lost in conveyance).1B Irrigation and have a total storage rapacity equivalent to many accounts for 80 percent of the consumptive use of watec thousands of times our annual consumptive use. Of while industrial uses account for only about 8 percent course, some of this groundwater is at depths so great Another 11 percent of the consumptive use of that its recovery is not economically feasible, and not water comes from domestic use for drinking water and all of the storage capacity is equally valuable. other purposeslq Gmundwater supplies accounted for “Usable storage capacity” is limited to that 40 percent of total water withdrawals by public water within economic pumping lifts and, in coastal supply systems as of 1985 (up from 34 percent in 1980) ‘basins, above sea level.% Nevertheless, the amount and nearly all (98 percent) of the water withdrawn for of usable underground water storage capacity is domestic uses by the nation’s rural population20 huge relative to surface storage. According to the Groundwater supplies serve fully half of the 1986 report of the National Groundwater Policy people of the United States with drinking water? Forum, the amount of groundwater stored within According to a 1987 study for the National Council on economic pumping lifts of the land surface is at Public Works Improvement, groundwater is the pri- least six times greater than that of all of the waters mary source of water supply for 80 percent of the stored in all of the surface lakes and reservoirs .26 58,530 community water systems, and for 96 percent In addition to their storage capacitygroundwater of the 144,800 non-community water systems?2 basins can be operated as water distribution systems, Groundwater’s share of water consumption is 36 depending on their physical characteristics. Wells percent and rising, considerably higher than its 20 sunk into a groundwater basin can provide water percent of water withdrawals. Furthermore, ground- near the point of use for a community of users water supplies are not generally as rapidly replen- extending over hundreds (sometimes thousands) of ished as are surface water supplies In fact, in some squam miles The groundwater basins throughout the areas, replenishment rates to groundwater basins United States, therefore, represent a large and valuable from surface water flows and precipitation are small resource as water storage reservoirs and distribution to virtually nonexistent Of the estimated 17,250 systems that is lily to become more significant as trillion gallons of groundwater within economically demands for water use continue to rise while surface accessible range of the land surface, only about 2 water availability and storage capacity remain limited. percent (345 trillion gallons) isavailableon a continuing basis (i.e., is replenished at a rate roughly equiva- Advantages of Underground Storage and Distribu- lent to rates of withdrawal) and much of that is in the tion. The construction of surface storage reservoirs, more humid regions of the country.” above-ground water tanks, and surface distribution As surface water is devoted increasingly to noncon- systems for capturing, retaining, and conveying sumptive uses, the nation is drawing on its compam- surface water supplies is a very costly undertaking. It tively more plentiful but less renewable groundwater is becoming even more difficult and costly in metro- for a rising share of consumptive uses Over the long politan regions, where land is becoming scarcer and term, this pattern of withdrawals and consumption is more expensive. Moreover, most of the best surface likely to continue to increase the relative scarcity and water reservoir sites have been developed, and the value of groundwater as a source of water supply. sustained yields of these reservoirs are decreasing due to accumulation of sediment” Thus, a major advantage to be gained from Groundwater Basins as Sources of Water Storage underground water storage capacity is less need to and Distribution construct costly surface storage and distribution capac$P Aquifers can store and release water and Groundwater basins function as underground distribute it to multiple points of use, as can surface storage reservoirs and distribution systems, and in reservoirs and pipelines, while saving the substantial

16 U.S. Advisory Commission on Intergovernmental Relations costs of building and maintaining the 1atteP Con- persistent groundwater contamination pmblems, water versely, underground water storage capacity is valu- stomd underground is exposed to a smaller range of able from a replacement standpoint; if an aquifer contamination risks, both natural and human% Both system is damaged or destroyed by depletion or underground and surface waters in storage are degradation, then surface water storage facilities will exposed to contamination from hazardous waste need to be constructed in its place.3o disposal, storm runoff, and a variety of nonpoint- Underground water storage and distribution are source threats However, such threats are more likely more efficient because water is not lost to evaporation to reach surface water relatively unimpeded, while as it is from surface water impoundments and the soil through which recharge waters pass before aqueducts31 Evaporation losses can be significant for reaching an aquifer may provide some partial filter- long-term surface storage, especially in the more arid ing of pathogens, and absorption of low concentra- parts of the United States where evaporation rates are tions of nitrates and phosphates.% Surface water also high. In New Mexico, for example, the state engineer faces eutrophication problems (such as “algae estimated evaporation losses from surface reservoirs blooms”) during times of low replenishment. during 1985 to be 423500 acre-feet or 20 percent of the The advantages of underground water storage state’s total consumptive use. In Montana, the Depart- from a quality protection standpoint may be seen in ment of Natural Resources and Conservation re- the plans of some water agencies in the United States ported evaporation losses from surface reservoirs to (and elsewhere) to cover surface water reservoirs The be 3.9 million acre-feet or 54 percent of the state’s total Los Angeles Department of Water and Power, for consumptive use of water= example, is installing covers over its smaller reser- Surface water storage and distribution facilities, voirs at an estimated cost of several hundred million whether large-scale dam and reservoir operations or dollars. The purpose is “to keep out bird and rodent community water tanks, require maintenance, While droppings, prevent human pollution of innumerable it is possible to damage an underground aquifer sources and block out sunlight that promotes the through dewatering, groundwater basins do not growth of troublesome algae,” which combines with require actual maintenance and do not breakdown or chlorine in water treatment to form potentially wear out, although recharge facilities, such as spread- carcinogenic trihalomethanes3’ ing grounds, do require maintenance. Surface water storage and distribution facilities are also more vulnerable to damage from earthquakes, flooding, QUALITY IS QUANTITY: and sabotage than are underground supplies” THE IMPORTANCE Surface water storage displaces existing or other OF PROTECTING GROUNDWATER RESOURCES ,possible uses of land. In recent years, this issue has Any contemplation of the use of underground been the source of a considerable amount of litigation water basins for water storage and retrieval must at concerning the impact of proposed new surface least consider the old water adage that “quality is water projects Use of existing underground storage quantity.” If water quality is sufficiently degraded to capacity can allow for continued use or development render it useless for its intended purposes, then from a .of land. Certainly, land uses in groundwater recharge practical standpoint that quantity of water may as areas need to be controlled, but storage of water well not exist This relationship between quality and underground does not foreclose as large a range of quantity holds true for waters underground as well as surface uses as does storage of water above ground. at the surface. Once contamination of an under- This is a point of particular significance for the ground aquifer occurs, its value is impaired or lost for eastern and midwestern United States While the a long time. Therefore, the preservation and maximi- western states contend with perennially low rainfall zation of the value of groundwater resources require and runoff, the eastern states are more likely to rigorous attention to quality protection. experience infrequent, unpredictable, but severe Unconfined aquifers and aquifer recharge areas droughts (as witnessed in the Southeast in 1986 and in are vulnerable to transmitting contaminants into the the Midwest in 1988). To prepare for such exigencies water supply Land uses and waste disposal overlying through the construction and maintenance of surface such locations must be carefully guarded. Moreover, water storage facilities requires a large investment in there are naturally occurring sources of water con- physical facilities that are unneeded most of the tamination to which an underground water supply time% Underground water storage can be especially can be susceptible. For instance, along the extensive valuable in circumventing the need for such facilities coastlines of the United States, fresh underground and their associated costs water supplies lie adjacent to the salt waters of the In addition, while it is important to recognize that oceans If the extractions from and replenishment to surface water quality has improved somewhat during the underground water supplies are not kept in thelasttwodecadesandthattherraresomeseriousand balance and groundwater levels decline sufficiently,

U.S. Advisory Commission on intergovernmental Relations 17 salt water intrusion can occur and can render water A “National Groundwater Problem”? pumped from underground essentially unusable. The “quality is quantity” adage underlies the Arguments in favor of assigning principal re- argument that both elements must be managed sponsibility for improved groundwater resources together because they are essentially inseparable. management to the federal government build on There can be no gainsaying that attention must be some of the information presented above. For exam- paid simultaneously to groundwater supply man- ple, groundwater supplies provide half of the na- agement and quality protection. There remains, tion’s drinking water. This establishes the importance however, a question of whether the intergovern- of groundwater resources to the United States as a mental relationships and organizational arrange- whole. To this one can add that groundwater re- ments for protecting groundwater quality ought to sources appear everywhere, that some aquifers ex- be the same as for managing supplies. It is possible tend across state boundaries, and that groundwater that the roles of federal, state, and local govern- problems have appeared throughout the country. ments and nongovernmental organizations may These observations have led some analysts to the be different in each case. This question is consid- conclusion that groundwater, or “the groundwater ered at greater length in Chapter Six. issue,” is a “national issue.” And a national issue needs a “national policy.” Consider the following statement from the codirectors of the National Center for GROUNDWATER USE Ground Water Research in Oklahoma: The trends and concerns identified above-in- The people also know that with its as- creasing reliance on groundwater supplies for con- tounding abundance and its predominantly sumptive water uses, limits on surface water avail- excellent quality, our National grourrdwnter re- ability and diminishing prospects for additional sources are endangered. They are constantly re- development, the importance of groundwater basins minded of this Nufional issue by documenta- as alternatives or supplements to surface water ries, articles, reports, discussions and series storage and distribution, and growing concerns about which accompany all of the information me- water quality - have been noted by several observers dia to which they are constantly subjected.. . . and have prompted calls for improved groundwater It is imperative that n nntiortal policy be is- management In and of themselves, calls for im- sued at the earliest possible time. It should proved management are unlikely to be contradicted provide a kinetic approach to addressing our or even controversial. However, the translation of ground-water problems in the coming years “improved manageme&’ into a set of roles and by providing the foundation for honest de- relationships for the national, state, and local govern- bate among experts representing the legal, ments in a federal system can involve considerable philosophical, and technical aspects of tile differences of opinion. The recommendations of ground-wnterissue. It is to be expected that this observers and advisors vary concerning the alloca- policy will continue to be adjusted as we tion of responsibilities for improved management come to grips with near term problems.38 within the federal system. These differencesderive, at Yet, equally incontrovertible national statistics least in part, from different perceptions of the nature can be used to contend that, at least from a de- of the issues involved. mand-supply standpoint, there is no national For example, is there a “national groundwater groundwater problem. It was observed earlier in this problem?” If there is, a different set of recommenda- chapter, for instance, that the potentially available tions concerning the allocation of responsibilities groundwater reserves are enormous compared to use within the federal system will emerge than if there is rates, and that available renewable fresh water not If there is not, then what are the problems with resources are several times fresh water withdrawals respect to the management of groundwater re- and consumptive water use. In the Nationnl Water sources? Are they primarily problems of localized Summary 2983, the U.S. Geological Survey made such resource shortages, and if so, where? Are they prob- an observation, and suggested that groundwater lems that derive from different degrees of depen- problems were more likely to be localized problems dence on groundwater supplies? Are the problems of availability and quality: that do appear generated by a lack of water availability or by allocation and management practices? If the Thus, considering only the overall supply of latter, which governments within the federal system water without regard to development, distri- are best situated to redress the deficiencies? The bution, or quality, t\fere is 110 crisisfficirtg tlteNrr- remainder of this chapter focuses on patterns of tion; the resource fnr exceeds fhe preset t level of groundwater use and availability, including the lrse. However, this in itself does not guarantee question of whether supply problems appear to be that adequate water supplies of an accept- generated primarily by natural resource availability able quality will be available where and or by resource allocation and management practices. when they are needed in the years to come.39

18 U.S. Advisory Commission on Intergovernmental Relations The italicized portions of the two quotations did several other states). The figures show how above illustrate some of the drawbacks to using different the patterns of groundwater dependence national data to assessthegroundwateravailability can be. The figures presented in Figure 2-3 for the five and quality challenges. Concluding either that states are presented for all 50 states in Appendix there is a national problem or that there is no Tables A-l, A-3, A-4, A-5, and A-6. problem could miss important local variations in Arizona and Mississippi, an arid western state the availability, use, and scarcity of groundwater, and a humid eastern state (see Figure 22), both show and of water resources generally high dependence on groundwater supplies across all As a result, other analysts have been less receptive measures By contrast, gmundwater mpmsents less than to the idea of groundwater resounx management as a one-fourth of water withdrawals for all types of use in national issue or national problem.” They stress the Connecticut, and only about one-third of the popula- diversity in availability scarcity, and use, and question tion of Connecticut is served by groundwater supplies whether something that can be accurately labeled “the Illinois and Washington illustrate how varied ground water issue” exists They emphasize that the groundwater dependence can be for different types balance (or imbalance) of water demands and gmund- of water use within a state. In Illinois, groundwater water supplies is determined locally, not nationally contributes a relatively small share of total water Just how diverse are the use, availability, and withdrawals, public water supplies, and water scarcity of groundwater resources? How much varia- supplied by industry for its own use, but contributes tion is masked by the national totals and national all of the water used for irrigated agriculture. By averages given above? contrast, Washington relies very little on groundwa- The groundwater supply and demand situa- ter for irrigation, and yet over half of the state’s tion is highly uneven, stemming in part from population is served by groundwater supplies,which variation in precipitation and atmospheric humid- make up a third of public supply withdrawals. ity, which affect replenishment and evaporation As can be seen by referring to Appendix lkbles rates. Figure 2-2 demonstrates that precipitation is A-l through A-6, the states in Figure 23 do not represent substantially lower in most of the West than in most the extmmes among the states For any measure of of the East. This contributes to higher daily water groundwater reliince, the variability from most depen- withdrawals per capita,regardless of whether from dent state to least dependent state is even greater For surface or groundwater, in the western states than example, the gmundwater percentage of total water in the eastern states. withdrawals varies from 91 percent in Kansas to 2 Nine of the ten states with the highest total daily percent in Montana (Figure A-l), with five western gmundwater withdrawals per capita (see Appendix A, states among the ten least dependent states on ground- Figure A-l) are west of the 100th meridian (the longitu- water for their total water withdrawals dinal parallel that runs roughly from the border Variations are also extreme in the dependence on between Minnesota and the Dakotas south to the border groundwater for different types of uses. Earlier in this between Tscas and Louisiana, and that most nearly chapter, it was noted that half of the U.S. population is defines the arid West and the more humid East). All ten served by groundwater supplies, but that proportion of the states with the lowest per capita daily gmundwa- ranges from 95 petcent in Hawaii to 20 percent in ter withdrawals are east of that division. It is also Colorado (Figure A-3). Groundwater comprises 40 apparent that the variation in groundwater withdraw- percent of withdrawals for public water supply systems als masked by national averages is huge: groundwater in the United States as a whole, but ranges from 92 withdrawals per capita per day vary from Rhode percent of publicsupply withdrawals in Idaho to 9 Bland’s 38 gallons to Idaho’s 6,281 gallons, while the pemnt in Maryland (Figurn AA). national average is 363 gallons Similar variability exists in reliance on groundwa- Beyond the sheer volume of water withdrawals, ter supplies for industrial and irrigation uses The largest dependence on groundwater supplies does not vary quantities of water withdrawn for industrial uses am systematically by region. Measures of groundwater concentrated, as would be expected, in the eastern dependence include: groundwater share of total statesql But dependence on groundwater supplies to water withdrawals, percentage of the population meet those industrial demands exhibits a variability of served by groundwater, and groundwater share of its own. For instance,98 percent of water withdrawals withdrawals for different uses (public supply, indus- for self-supplied industrial use in New Mexico comes trial, and irrigation). from gnnmdwam but in neighboring Colorado the For purposes of illustration only Figure 23 corresponding figure is 6 percent (Figure A-5). presents these measures in a sample of five states in Reliance on groundwater for irrigation also different parts of the country, each of which adopted varies widely across the states The greatest use is in significant new groundwater supply management the western states, but dependence follows a different and/or quality protection policies during the 1980s (as variation. In Illinois, Indiana, and Wisconsin, for

U.S. Advisory Commission on Intergovernmental Relations 19 Fip re 22 Average Annual Precipitation in the United States

Source: U.S. Geologicd Survey, hbtio~m~ b’afer SUJJJJJJ~J~ I%3 (Washington, DC, 1984).

20 U.S. Advisory Commission on Intergovernmental Relations Eiglcre 2-3 Groundwater Dependency in Selected States, 1982 and 1985 1982’ 19852 Arizona Pementage of Water Withdrawals3 57 48 Rrcentage of Population Served 65 64 Percentage of Public Supply Withdrawals 54 62 Percentage of Industrial Withdrawals3 88 98 Percentage of Irrigation Withdrawals 58 45 Connecticut Percentage of Water Withdrawals3 11 24 Percentage of Population Served 32 32 Pexentage of Public Supply Withdrawals 17 18 Percentage of Industrial Withdrawals 3 10 12 Percentage of Irrigation Withdrawals 8 7 Illinois percentage of Water Withdrawals 3 5 35 Percentage of Population Served 49 48 Percentage of Public Supply Withdrawals 27 percentage of Industrial Withdrawals 3 10 2 Percentage of Irrigation Withdrawals loo 100 Mississippi Percentage of Water Withdrawals 3 54 83 Percentage of Population Served 93 92 Percentage of Public Supply Withdrawals 82 Percentage of Industrial Withdrawals 3 61 E Percentage of Irrigation Withdrawals 65 82 Washington Percentage of Water Withdrawals3 9 18 Percentage of Population Served 71 52 Percentage of Public Supply Withdrawals 37 35 Percentage of Industrial Withdrawals3 15 19 Percentage of Irrigation Withdrawals 4 13 1 U.S. Geological Survey, National Water Summary 1984 (Washington, DC, 1985). 2 Wayne Solley, Charles Merk, and Robert Pierce, Estimated Water Usein the United States 1985, USGS Circular 1004 (Washing- ton, DC, 1988). 3Excluding withdrawals for thermoelectric power. example, groundwater supplies nearly all of the wa- The uneven distribution of groundwater use and ter used for irrigation; in Montana, 1 percent: and in dependence means that the relative scarcity of sup- Alaska and New Hampshire, zero (Figure A-6). plies varies even more dramatically. Geographic As the states vary, use patterns in localities also differences in use are compounded by differences in vary In Tstas, for example, slightly less than half of available supply. The nation’s groundwater reserves the population is served by groundwater,but the City are enormous relative to demand, but those reserves of San Antonio is entirely dependent on groundwater supplies, and the irrigation of High Plains agriculture are very unevenly distributed. They are unequally comes almost wholly from underground. About available everywhere and they are not most plentiful one-third of New York state’s population is served everywhere they are most needed. In one location, from gmundwatec which constitutes only one-quarter dependence on gmundwater supplies might be high of the water withdrawals for public water supply, but but available supplies may be smaller and of limited Long Island’s communities depend almost entirely renewability In another area, reliance on gmundwater on their underground aquifers supplies may be low but supplies abound in quantity

U.S. Advisory Commission on Intergovernmental Relations 21 Figme 2-4 Simplified Water-Resources Budget for U.S. Water-Resources Regions, 1980 Depletion Consumptive Renewable Consumptive Use of Groundwater Use SUPPlY as Percent of Storage Region O-w0 O&9 Renewable Supply (bgd’) New England 0.6 78.4 1 0.0 Mid-Atlantic 1.8 2ES 2 0”:; SouthGreat LakesAtlantic 5.61.6 74.3 ; 0.0 Ohio 2.1 139.6 2 Tennessee iv 41.2 1 i:; Upper Mississippi 77.2 3 0.0 Sour-is-Red-RainyMississippi 42130.5 464.8 8 E Missouri 19.3 6;; 31 2:2 Arkansas-White 11.0 68:7 16 3.6 Texas-GulfRio Grande 8.3 33.15.4 25 2 Upper Colorado ::; 13.9 ;; 0:o

ColoradoGreat Basin (all) 10.84.1 10.310.0 10541 k! Pacific Northwest 12.6 276.2 5 0:o California 25.5 74.6 34 Alaska 0.04 975.5 0 Hawaii 0.7 7.4 9 1 Billions of gallons per day. Source: U.S. Geological Survey, National Wafer Summy 1983 (Washington, DC, 1984). and renewability. Other possibilities exist between the limits of renewable supplies are being reached these extremes-for example, locations of heavy and groundwater is being depleted. Those regions are use but large quantities, or of lower quantities and the Arkansas, Colorado, Mississippi, Missouri, and lesser use. Dependence on groundwater also will Rio Grande River basins, and parts of California and be affected by availability of surface water sup- the Great Basin. plies, and vice versa. The region of most rapid depletion of groundwa- Where Is Improved Management Most Needed? ter storage, at a rate of nearly 6 billion gallons per day, is the Mississippi River region. In the Colorado River Basin, total daily water consumption now exceeds Because they are driven by use and dependence estimated renewable supply. as well as by availability, water scarcity and shortages have occurred in all regions of the United States* With the population of the western states ex- Nevertheless, there do appear to be some areas where pected to grow by over 40 percent between 1980 and water use is reaching the limits of renewable water 2000, and with the populations of Arizona and supply, and where groundwater in storage is being Nevada in particular expected to more than double drawn down to meet demands. during that brief period,“R expectations quite natural- Figure 24 presents illustrative, simplified com- ly arise that water shortages in the arid regions in parisons among water resources regions identified particular can only worsen. Such expectations have by the U.S. Geological Survey The amount of water been at the heart of calls for swift and decisive action consumption (as opposed to water withdrawals) is to “manage” water supplies. And it is understandable, compared with the estimated renewable supply under the circumstances, that there is not much (surface and groundwater) for each region. The patience for those who suggest pausing to consider results confirm previous evidence presented in this whether perceived current and impending “short- chapter, namely, that the nation as a whole is in no ages” are real, whether there really is not enough danger of approaching the limits of its available water to go around. But water-scarce lands have renewable water supplieP and drawing down its given rise to mirages before, and, despite an under- groundwater resources,but that thereare areas where standable impatience, it may be prudent to examine

&I U.S. Advisory Commission on Intergovernmental Relations whether nature’s reality or human perception is Nevada, and New Mexico, generally considered to be driving the “water crisis.” the most arid states, could accommodate population Are these areas experiencing problems of water increases of 6-fold, 25fold, and &fold, respectively. availability or allocation? In the areas where con- Incidentally, none of the populations of these states is sumptive use is approaching or has reached the limits projected to come anywhere near these estimates by of renewable water supply, is this occurring because the middle third of the 21st century there is not enough water or because of the way in The vast majority of water rights, withdrawals and which water is allocated and used? diversions, and consumption in the western states As noted earlier in this chapter, some water uses (including the Colorado River Basin) is accounted for by tend to be more highly consumptive than others. irrigated agriculture. Agriculture holds the rights to an Consumptive use rates for irrigated agriculture (most estimated 85 percent of the water in the West% of which is located in the Midwest, Great Plains, and Agriculture accounts for about SO percent of water use Southwest) are in excess of 50 percent, while the rates (self-supplied industrial use, 12 percent urban uses, 7 for industrial use (most of which occurs in the percent; and rural domestic use, 1 petcent):7 and about Northeast and South) and public supply are less than 90 percent of western water consumption.48 25 percent, These differences translate into a simple Where is improved management most needed? comparison of the eastern and western states pre- There do not appear to be too many simple answers to sented by the U.S. Geological Survey The overall that question. A simple regional answer, that improved consumptive water use rate in the eastern states is groundwater management should be targeted at the about 11 percent, and in the western states, it is 41 western states (or the Colorado River Basin states, or the percent The eastern United States accounts for 53 Mississippi River states, etc) does not seem sufficient, percent of the nation’s water withdrawals,but only21 because groundwater use and dependence is high in percent of water consumption. The western United some states and low in some states in all regions On the States accounts for 47 percent of the nation’s water other hand, a simple answer that improved manage- withdrawals and 79 percent of the nation’s water ment is needed everywhere overlooks the diversity of consumption. Much of this difference is attributable water msources and is so broad as to be essentially to the different uses of water in different areas. meaningless Clearly, continued improvements in wa- To illustrate the impact of highly consumptive ter resources management are needed in pans of the irrigation practices even more plainly, and to offer an Southwest, but they also are needed in other places answer to the question of whether water shortages where water scarcity and water quality problems have are driven mainly by availability or allocation, con- occurred on a variety of scales, from interstate regions to sider the following analysis of the Colorado River individual local groundwater basins Basin states, where water use has reached the limits of renewable supply. Below are the estimated 1988 populations of some western states, alongside esti- SUMMARY mates of the populations that could be supported by the water resources of those states at 150 gallons per How does one reconcile all of this information capita per day, if all were devoted to municipal and concerning groundwater resources, their value, their industrial u~es:~ uses, the importance of protecting quality, and the presence of abundance and shortages and different allocations of water across the country? The United Water- 1988 Sustainable States has abundant water resources relative to its State Population Population population. This is true even of the relatively arid western states, where water consumption is pressing Arizona 3,466,ooo 19,700,ooo against the limits of renewable supplies and where California 28,168,ooo 296,600,OOO stored groundwater reserves are being drawn down. Colorado 3PJ,~ 39,800,ooo On the other hand, potentially significant water Nevada v%Qoo 27,100,OOO New Mexico 1#510,ooo 13,300,ooo supply problems have been seen on the horizon for decades. Current and projected imbalances between Utah 1,691,OOO 3fGw~ Wyoming 471,ooo 39/2@qoo limited or shrinking supplies and growing demands are seen as certain attributes of the present and the Have the Colorado River Basin states really future. There appears to be plenty of evidence, in the reached the limits of water development, or has form of overdrafting of groundwater supplies, the allocation and use in some of thosestates caused them drying up of surface water supplies, and the compari- to appear to be close to the limits? According to these sons made in Figure 24 above, that in several locations figures, California has enough “room,” in terms of demands for water are indeed outstripping supplies available water resources, for a population larger What reconciles these perceptions is the recogni- than the population of the United States. Arizona, tion of the role of institutional arrangements in the

U.S. Advisory Commission on Intergovernmental Relations 23 allocation and management of water resources. In the Notes words of the National Wafer Summary 1983: 1 C.H.. Ward, N.N. Dunham, and L.W Canter, *Ground Water-A National Issue,” Ground Wafer 22 (March-April The actual availability and quality of wa- 1984): 138. ter are determined, to a large degree, by the 2 Warren Viessman and Claire Welty, Water Management: way in which the resource is developed and Technology and Institutions (New York: Harper and Row, managed in the face of changing demands 1985), p. 17. These matters are governed by human deci- 3 Wayne Solley, Water Use in tke United States, 1980 (wash- sions regarding the engineering works m- ington, DC: U.S. Geological Survey, 1983), p. 3. These quired to develop new supplies, the manage- quantities may be placed in some perspective by noting that the lower estimate of 33,OMl trillion gallons of water ment strategies and operating policies is equivalent to the total amount of water deposited by governing the use of &sting supplies among the Mississippi River into the Gulf of Mexico during the users or among States, and the policies or ac- entire 200 years of the Republic. tions employed to ensure the quality of water 4 United States Geological Survey, National Water Summa- supplies49 ry 1983 (Washington, DC, 1984), p. 1. 5 Wayne Soiley, Charles Merk, and Robert Pierce, Esti- Recognition of the role played by institutional mated Useof Water in the United States, 1985 (Washington, factors prompts us to inquire whether apparent water DC: U.S. Geological Survey, 1988), p. 59. shortages are in fact the result of limits imposed by 6 U.S. Geological Survey estimates the disposition of wa- physical conditions. It is hard to know the limits ter withdrawals as of 1980 to be: 72 percent return flow, imposed by physical supply conditions, if demand 23 percent consumptive use, and 5 percent conveyance for the resource is being conditioned by institutional loss, irrigation. SoUey, pp. 4-5. arrangements that freeze the ways in which supplies ’ Solley, Merk, and Pierce, p. 1. can be used. a U.S. Geological Survey, National Water Summary 1983, p. In fact, the physical characteristics of water 1. supplies and the institutional arrangements affecting 9 Soiley, Merk, and Pierce, p. 1. water use are both potential variables in the resource lo Ibid equation. “[Mlany people do not realize that institu- l1 Ralph C. Heath, “introduction to State Summaries of tions, rather than physical conditions, are often the Ground-Water Resources,” National Water Summary cause of shortfalls in water s~pply.“~ What appears 1984 (Washington, DC: U.S. Geological Survey, 1985)! p, on the surface to be a shortage of supply dictated by 121; James W Dawson, “State Groundwater Protectton nature is often the manifestation of underlying Programs-Inadequate,” Ground Water 17 (January-Feb- institutional factors that result in existing supplies ruary 1979): 108. being overused or used inefficiently. t2 Wade Miller Associates, 7lie Natiolt’s Public Works: Report on Water Sllpply (Washmgton, DC: National Council on Given the overall abundance of water republic Works Improvement, 1987), p. 68. sources relative to population in all areas of the country, problems of supply availability and reli- l3 U.S. General Accounting Office, Groundwater Protection: 7he Use of Drinking Water Standards by the States (Wash- ability may be viewed as problems of institutions ington, DC, 1988), p. 1. and management practices rather than of re- l4 #Groundwater Contamination: Common Ground for sources. The United States does not confront a crisis the Common Law,” Water Strategist 2 (January 1989): 1 + . of natural water supply availability, or even a l5 Solley, Merk, and Pierce, p, 1. “national groundwater problem,” but many local- l6 Helen J. peters, “Groundwater Management,” Writer Re- ized issues that differ in nature and severity. sources Bulletin 8 (February 1972): 197. This phenomenon How can the management of water resources be is observed with reference to California in Susan M. improved in ways that take advantage of the value of Trager, “Emerging Forums for Groundwater Dispute groundwater resources and surface water supplies, Resolution: A Glimpse at the Second Generation of allocate them wisely among uses, and preserve and Groundwater Issues and How Agencies Work Towards Resolution,” Pacific Law Journal 20 (October 1988): 31: protect them for the future? What improved manage- “While competition for California’s limited surface wa- ment options are available, how are they arranged, ter supplies is increasing, the supplies available for agri- and how do they operate? What changes in intergov- cultural, municipal, and industrial uses are decreasing, ernmental roles and responsibilities would facilitate due to environmental demands.” improved water resource institutions and manage- l7 Solley, Merk, and Pierce, p. 30. ment practices? In the next chapter, we turn to the l* Ibid., p. 14. concept and practice of conjunctive management of l9 Ibid. surfaceandgroundwaterresources,examiningsever- al examples of intergovernmental arrangements for z” Ibid. improving the allocation and management of water 21 Heath, p. 120. resources, and maximizing their value. 22 Wade Miller Associates, pp. 17-18.

24 U.S. Advisory Commission on Intergovernmental Relations 23 Viessman and Welty, p. 17. 37 Frederick M. Muir, “Drinking in the View,” Los Angeles ‘hes, January 31,199O. 24 See for example, California Department of Water Re- so&es, California’s Ground Water (Sacramento, 1975), p. ss Ward, Durham, Canter, pp. X38-140 (emphasis added). iii; and William Blomquist, Getting Out oftke Trap: Ckang- 39 U.S. Geological Survey, Nafional Wlzter Summary 1983, p. ingan Endangered Commons to a Managed Commons. Ph.D. 1 (emphasis added). Dissertation, Indiana University, 1987, pp. 524-528. 40 See, for example, Harvey 0. Banks, “Management of In- 25 Helen J. Peters, “Ground Water Management in Califor- terstate Aquifer Systems,” ASCE Journal OJ the Water Re- nia.” Paper presented at the American Society of Civil sources Plamling and Management Division 107 (October Engineers Conference, Las Vegas, 1982, p. 3. 1981): 574, contending that a “specific set of guidelines for ground-water management cannot be applied uni- 26 National Groundwater Policy Forum, Groundwafer: Sav- formly throughout the country”; and Frank Rayner, ing the Unseen Resource (Washington, DC: The Conserva- “Ground-Water Management -A Local Government tion Foundation, 1986), p. 9. Concern,” Ground Water 10 (May-June 1972): 2-5. n Heath, p. 121. 41 Wade Miller Associates, p. 128; Solley, Merk, and Pierce, za Stephen J. Burgesand Reza Marnoon, A Systemmntic Ex- p. 30. amination of Issues in Conjunctive Useof Ground and Surface * Note the following observation from Wade Miller Asso- Waters (Olympia: Washington Department of Ecology, ciates, p. 8: 1975), p. 33; also, Peters, “Groundwater Management,l p. The problem of adequacy of supply has now 197. spread to east of the Mississippi River. . . . Water 29 Erwin Cooper, Aqueduct Empire (Glendale, California: shortages, seldom encountered until the 1970s Arthur H. Clark Co., 1986), p. 137. east of the Mississippi, promise to become more prevalent in the future. Water will still be plenti- %Neil S. Grigg, “Appendix: Groundwater Systems,” in ful, but better management of the resource will be Kyle Schilling et al, 7ke Nation’s Public Works: Report on necessary to ensure an adequate supply for all Wafer Resources (Washington, DC: National Council on uses. Public Works Improvement, 1987), p. B-2. rw The United States as a whole consumes about 7 percent 3* Burges and Marnoon, p. 33; California Department of of national renewable water supplies. Solley, Merk, and Water Resources, p. 129. Pierce, p. 60. g Solley, Merk, and Pierce, p. 52. 44 Rodney Smith, “A Reconciliation of Water Markets and Public Trust Values in Western Water Policy.” Transac- 33 Cooper, p. 137. In August 1989, the Los Angeles Aqueduct, tions of the Fifty-Third North American Wildlife and which conveys up to 75 percent of the water supplies of Natural Resources Conference, 1988, p. 328. the City of Los Angeles, was blocked by debris from heavy storms that caused flooding. Portions of the aque- *Frank Welsh, How to Creafe a Wafer Crisis (Boulder: duct structure were twisted! and concrete walls cracked Johnson Books, 1985), p. 16. and buckled. Although reparrs proceeded promptly and 46 Christine Olsenius, “Tomorrow’s Water Manager,“Jonr- took only two weeks, the incident illustrates the vulner- nal of Soil and Water Conservation 42 (September-October ability of surface water facilities. The aqueduct was also 1987): 312. the target of vandals’ bombings in the 1920s and once 47 Smith, p. 329. during the 1970s. * E Lorenz Sutherland and John A. Knapp, “The Impacts of 34 Charles W. Howe and K. William Easter, Inferbasin ‘Bens- Limited Water: A Colorado Case Study,” Journal of Soil fers of Water: Economic Issues and Impacts (Baltimore: and Water Conservation 43 (July-August 1988): 294. Johns Hopkins University Press, 1971), p. 3. 49 U S Geological Survey, National Wafer Smnmnry 1 P8.3, p. 35 California Department of Water Resources, p. 129. 1: . 36 Burges and Marnoon, p. 34; Grigg, p. B-2. so Viessman and Welty, p. 49.

U.S. Advisory Commission on Intergovernmental Relations 25 26 U.S. Advisory Commission on Intergovernmental Relations Chapter 3 The Concept and Practice of Conjunctive Management

Groundwater supplies are part of a hydrologic locations have plentiful surface water supplies but cycle that includes surface water and precipitation. fewer groundwater sources, and others are underlain The notion that groundwater is separate from and by substantial groundwater reserves though surface unrelated to surface water is, as the National Water supplies are barely present Commission observed nearly two decades ago, a Surface water and precipitation are subject to myth long ago abandoned by hydrologists’ The considerable temporal variability. Rainfall and sur- water supplies and problems of any given locale face water flows can be erratic, unpredictable, and exhibit an “essential unity”2 sometimes insufficient to meet all demands. This The water stored underground in aquifers fre- variability of surface water supplies presents a chal- quently is received from surface streams through lenge in securing a reliable water supply, whether for percolation from their channels. Conversely, the base municipal, industrial, or irrigation uses flow of many surface streams is fed by underground Groundwater supplies generally are contained water sources outcropping onto the land surface or within large aquifers and are available throughout feeding up through springs, And both surface waters the year Groundwater supplies respond more slowly and groundwater are fed by precipitation and runoff to variations in rainfall and runoff, and thus generate that reach and traverse the land surface? less uncertainty in planning.6 Regulating Surface Variability with Underground Storage THE CONCEPT MAXIMIZING THE VALUE OF WATER RESOURCES Reliable water supply systems require storage Recognition of these attributes, combined with capacity to regulate the variability of rainfall and the developments described in Chapter 2, has led to surface water flows Storage provides for adequate the concept of conjunctive use of surface water water deliveries during periods of deficient precipita- supplies and underground water reservoirs. Con- tion and runoff junctive use involves the use of underground water This cyclic storage can be secured by use of storage in coordination with surface water supplies surface reservoirs or the available storage capacity in so as to increase the total water yield over time.4 More underground water basins’ Underground aquifers can complete and reliable use of the total water resources “smooth the pulses of arrival and withdmwaP that of an area is possible by employing surface and characterize the sounxs of water supply (precipitation groundwater supplies together, through “an operat- and runoff) and the sequences of water demand ing strategy that exploits the different characteristics” Conjunctive use can relate underground water of surface and groundwater supplies5 supplies and storage with surface water supplies to regulate surface supply variability. During periods The Variability of Surface Water Supplies when precipitation and runoff are plentiful, consumptive uses can be satisfied directly from surface Groundwater and surface water supplies are not watersources. Duringsuch periods,surplussurface distributed evenly throughout the United States supplies also can be used to recharge underground Some places have plentiful surface and groundwater reservoirs. In times of scarce precipitation and supplies; others have a paucity of both. Still other dwindling surface flows, underground supplies can

U.S. Advisory Commission on Intergovernmental Relations 27 be drawn down, providing relatively inexpensive surface reservoir*4As degradation problems continue to and reliable fresh water yields. These extractions escalate, it can be of nearly inestimable value to a create available storage capacity underground that community to be able to switch to another source rather can be recharged during the next wet period? than lose its entire water supply (surface or under- Extraction of groundwater during drier periods ground) to a contamination incidenti also can allow for the satisfaction of instream flow Underground Transmission requirements of surface water supplies. During times of lowered surface water flows,communities may not As noted in Chapter 2, groundwater basins be forced into a losing choice between satisfying provide a natural and practical water distribution needs for offstream consumption on the one hand system that can supplement or replace surface distri- and maintenance of aquatic life, wildlife habitats, bution works. Solitary reliance on surface water and scenic values on the other requires the construction and maintenance of an The pressure of increasing water demand has led to extensive system of waterworks to carry water from water storage in surface reservoirs that wem originally its point of capture or storage to every point of use built for flood controL This can have disastrous consequences Floods have occurred in several states because within the served community. An underlying aquifer provides a water supply source throughout a served partially filled flood control sites were unable to hold community, and water recharged into an aquifer at additional runofP Where underground aquifers of one point may be withdrawn in many places.16 sufficient capacity are available, their use for water For all practical purposes, anyone overlying a storage could aid communities in meeting water de- groundwater basin may be physically able to with- mands while leaving flcodcontrol dams and reservoirs free for their intended use. draw water by means of a well and (usually) a pump. This characteristic of groundwater basins is often cited as one of its vulnerabilities,as multiple demands Uniting Alternative Sources of Supply placed on a single ~psource am expe&d to lead frequently to overexploitation and the socalled “trage- There are several desirable aspects of having dy of the commons” It is worth noting, howevet; that alternative sources of water supply. Conjunctive use this characteristic of an underground water supply is of alternative sources is possible and can generate one of its advantages as well as one of its vulnerabilities economies.” This is especially likely when the As part of a coordinated use program, a groundwater sources of supply have different spatial, temporal, basin can be a source of water supply, a source of and quality characteristics, as is the case with surface storage, and a means of transmission that complements and groundwatec surface water distribution systems and allows them to The use of groundwater basins as storage facili- be built and maintained on a reduced scale. ties saves the cost of constructing surface storage and conveyance facilities to handle “peak” demands. Surface water facilities can be constructed for meet- CONJUNCTIVE USE ing normal demands, and peak needs can be satisfied AND CONJUNCTIVE MANAGEMENT by pumping underground yields. This can be an Conjunctive use may occur without a deliberate especially valuable aspect of conjunctive use when plan or objective and without explicit coordination in surface waters are being transported considerable an attempt to maximize the total yield of water distances or conveyed from one watershed to another supplies. Conjunctive management may be defined as part of an interbasin transfer” as directed efforts to use available water supply The ability to draw on alternate water supplies sources and storage capacity together toward the allows water purveyors to respond to limitations objectives of maximizing, allocating, and preserving imposed by quantity or quality. Groundwater sup supplies.*7Conjunctive management of surface and plies are a valuable supplement to surface water groundwater supplies can maximize efficiency, di- flows, and conversely, access to surface water can recting resources to their higher valued uses as extend the useful life of the groundwater source in sources of supply and storage. communities dependent largely on groundwater but An example of the difference between conjunc- where replenishment is small relative to demand tive use and conjunctive management is contained in (e.g., the Southwest and High Plains).‘3 the following excerpt from a 1962 engineering report Similarly, quality problems are less threatening concerning the use of the Main San Gabriel Basin in to communities that can alternate between sources of southern California: supply. Groundwater quality degradation, for in- The ground water basin underlying San stance, can result in increased demand for surface water Gabriel Valley has been used for many years supplies, which might be met by encroaching on flood as a water storage reservoir and as a water control storage or reallocating the rights to storage in a transmission system. As quantities of re-

28 U.S. Advisory Commission on Intergovernmental Relations charge and extraction have varied, water lev- For those communities, pursuing conjunctive els have fluctuated in order to balance the management involves understanding what it entails. difference between inflow and oufflow with Some discussions in the water resources literature change in ground water storage. In other approach the issue of what constitutes “manage- words, the ground water basin has been “opment” by identifying organizational forms. For exam- erated” in a manner very similar to a surface ple, some authors recommend a single,central public reservoir The main difference is that the authority for “groundwater management,“% on the ground water basin has been operated unin- presumption that the presence of multiple organiza- tentionally to a far greater extent than are tions implies lack of functional coordination.% Such a most surface reservoirs. As more expensive view suggests that “groundwater management@ te- supplemental water is brought into San Ga- quires a “groundwater manageP authorized to per- briel Valley it will be important that the basin form all functions This defines “management” orga- be operated more intentionally than in the nizationally: one organizational form produces past so that neither the local water nor the “management,” while others do not supplemental water is wasted from the area. Alternatively, the substance of groundwater The operation of the basin is also important management may be identified in terms of the to downstream users.16 necessary functions to be performed, leaving open the possibility of a variety of organizational arrange- In a period characterized by increasing water use ments. This approach also leaves evaluation of and tight public financial resources, optimal resource organizational performance primarily to the citizens use may only be obtainable by the coordinated whose interests are to be served conjunctive use of surface and groundwatetlq Addi- Conjunctive management coordinates the tional development projects appear to be subject to amount and location of groundwater recharge and increasing problems and decreasing probability. Un- withdrawals together with the withdrawal, use, der these circumstances, attention turns more to im- return flows, and storage of surface waters. The pmved management As the author of a recent article on functional elements of conjunctive management are artificial mcharge put it, “If water purveyors can no controlling overdraft, regulating storage, protecting longer beat water supply problems to death with water quality from degradation, assigning costs, and money, they must solve them with ingenuity”” Con- adaptability and error correction.27 This is consistent junctive management is part of that approach it has with the definition of conjunctive management as been described as “a software tactic” that “can generate the coordination of conjunctive use. With a view of new increments of water cheaper than can the building management as coordination (with diverse institu- of hard~are,~ such as surface water projectszl tions and jurisdictions involved in related activities), the questions for evaluation become whether func- Defining Conjunctive Management tions are being performed, whether they are being in Substantive Terms coordinated, and whether citizens are satisfied.

Although conjunctive management has emerged Controlling Overdraft as a consensus in the water resources management literature for decades, implementation of the concept The control of overdraft is a necessary element of has been less than universal.22 Conjunctive manage- groundwater management because of the threats to ment has a nearly lOByear history? and, while it is still an aquifer and the overlying land from excessive not used in most of the largest population centers, the withdrawals. At a minimum, withdrawals in excess of number of communities (e.g, Los Angeles, Phoenix, recharge to the aquifer result in the lowering of ‘Albuquerque, and Houston) and water utilities investi- underground water levels; this produces longer gating arranging, and adopting conjunctive use pro- pumping lifts, which increase the associated energy grams is growing at an impressive rate. 24 costs and may necessitate lowering pumps and Conjunctive management will not be feasible in communities that do not have access to both surface deepening or replacingwells?s Excessive dewatering and groundwater supplies Further, in areas where of aquifers (not to be confused with “controlled water use is relatively low and supplies (surface, mining” as part of a management plan) can lead to: ground, or both) are plentiful, citizens may choose not (a) soil compaction, which robs the aquifer of future to pay the costs of managing supplies that are storage capacity and thus decreases its value; (b) land abundant relative to demand (this does not refer to the subsidence (as has occurred in several places), which importance of efforts to maintain the quality of those threatens surface structures and residents;29 and (c) in supplies). In most areas, however, there is access to some cases, salt water intrusion that threatens the surface and groundwatersupplies,and water uses are usefulness of the fresh water supply increasing relative to supplies so that scarcity either is The dangers of overdraft dominated discussion a problem or looms on the horizon. of groundwater management through most of this

U.S. Advisory Commission on Intergovernmental Relations 29 century. Groundwater supplies were recognized as Conjunctive management of groundwater and limited, and the aquifers were recognized as subject to surface water supplies, therefore, requires the cre- these threats. The resulting recommendation, follow- ation of “regulatory storage capacity”34 by temporarily ing a prudent and risk-averse strategy based on the overdrafting the groundwater basin during low- state of hydrologic knowledge, was that long-term recharge periods and returning water to storage maintenance of a groundwater basin required that during high-recharge periods. Conjunctive manage- annual withdrawals be limited to the “safe yield” or ment is inconsistent with rigid safe-yield require- “sustainable yield,” defined as the average annual ments, which “often have limited the potential use- amount of water that naturally recharges the basin.W fulness of basins to offset variations in annual Such a strategy was directed at maintaining under- precipitation and particularly to postpone or reduce ground levels at an elevation sufficient to preclude the need for importations of water”% Groundwater damage to the water or the aquifer from compaction, levels are managed with the objective of maintaining subsidence, and contamination. them within a desirable range defined in part by the As information about and experience with regulatory storage capacity groundwater supplies and use have grown and Therefore, controlling as opposed to eliminating concepts of groundwater management have changed,31 overdraft in a groundwater basin is a balancing prac- it has become apparent that in many cases previous tice. Given the diversity of underground basins from strategies may have been too rigid. Excessive dewater- one location to another, it follows that the maintenance ing of aquifers is still understood and accepted as of groundwater levels within a range that does not inviting the kinds of damage described above, but the aggravate the tendencies toward compaction, subsi- definition has been modified by stperience. dence, or contamination, provides for the cyclic storage In many places, sediment compaction, land of water underground, and maintains economic pump- subsidence (including sudden sinkhole appearance), ing distances, will involve considerably different de- and quality degradation have occurred. In many sired ranges and targets among aquifers other places, groundwater supplies were overdrafted Controlling overdraft requires some limitation by considerable amounts over extended periods on groundwater withdrawals. There are various without producing deleterious effects other than means of accomplishing this, including judicial or increased pumping lifts Dangers that were once administrative determinations of pumping rights, and ascribed to any overdrafting of groundwater supplies the imposition of surcharges on quantitie Assurance are now recognized as being dependent on such and, where needed, enhancement of groundwater variables as the rate, degree, and duration of the replenishment also are essential to controlling over- overdrafting, and especially on the physical charac- draft As with limiting withdrawals, there are several teristics of the s~pply.3~ (Underground water in means of implementation. Flows in stream channels certain karat areas, for instance, may be considerably can be extended to allow for greater percolation, water more susceptible to the sinkhole phenomenon than spreading basins can be operated with waters diverted alluvium and bedrock valley-fill aquifers.) from ordinary stream channels, and so OI-L~ Therefore, in defining the elements of conjunc- Assuring and enhancing replenishment also tive management, emphasis has been placed on involves maintaining a balance within a range of controlling rather than eliminating overdraft The parameters. Excessive recharge of an aquifer can distinction is a deliberate and important one. produce marsh-like conditions and move the water Conjunctive management requires the use of table so close to the land surface that potential underground storage capacity. Using a groundwater flooding problems may be aggravated. Insufficient basin for temporary or long-term storage implies that recharge fails to take advantage of the aquifer’s the capacity is available. This implication is inconsis- storage capacity, increases pumping lifts and costs, tent with an objective of maintaining a groundwater and may leave users with less than adequate supplies basin as full as possible at all times. The conjunctive for peaking and dry-period withdrawals. The balance use of surface and groundwater supplies in such a to be achieved is one of sufficient recharge to manner as to maximize the total water yield counter- optimize the uses of the underground reservoir, while intuitively demands that groundwater basins not be maintaining adequate storage space for future ex- maintained at their fullest possible levels. Mainte- igencies and sufficient depths to water nance of groundwater levels at their highest elevation within an aquifer leaves no available space to accom- Regulation of Storage modate any surplus of surface water A surplus of precipitation and runoff with full groundwater mser- The regulation of storage is necessary to ground- voirs, produces the same result as with surface mser- water management and, indeed, is of the essence of voirs: water spills across the land surface, potentially conjunctive management3’ Part of the task has been causing surface damage and resulting in waste.% alluded to: the maintenance of sufficient regulatory

30 U.S. Advisory Commission on Intergovernmental Relations storage capacity to accommodate possible surplus Adaptability flows while at the same time avoiding an excessive dewatering of the aquifer Another vital aspect of An essential element of conjunctive manage- managing underground storage capacity is allocat- ment is the capacity for adaptability and error ing storage space. Space within a single groundwater correction.” Adaptability involves responsiveness to basin might be desired by competing users for changes in conditions - shifting amounts and pat- different uses such long-term storage, short-term terns of use, quality or quantity problems, advanced storage, peaking, and transmission. technologies of water production or consumption.43 Among the potential problems to be addressed Error correction involves a responsiveness to in this element of conjunctive management is the mistakes made by msoume managers and planners For issue of rights to stored water. No entity, public or example, use amounts and patterns may not have private, is likely to undertake storing water under- changed, but may have been erroneously calculated or ground without first being assured of the ability to forecast Adaptability and error correction require that reclaim the value of that water in some way. As will any conjunctive management scheme be characterized be discussed at greater length in Chapter 5, not all by institutions that encourage the development of states have legal systems governing water rights information and flexibility of management practices that are conducive to such practices.

THE PRACTICE OF CONJUNCTIVE MANAGEMENT: Protection of Quality CASE STUDIES Conjunctive management, with its multiple Protecting the underground supply from con- functional elements, is likely to present a highly tamination is an obvious element of conjunctive complex picture when conducted within a noncen- management Among the factors to be considered am tralized, public-private system of organizational ar- the initial quality of the surface and groundwater rangements and relationships. To illustrate different supplies,and the impact of recharge and withdrawal. ways of organizing the elements of conjunctive If, for example, water is to be recharged into an management, this section presents examples of inno- underground aquifer for subsequent withdrawal for vation and diversity, including drinking use, the water that is recharged must meet A centralized administrative apparatus im- drinking water quality standards. Moreover, a consid- plementing a comprehensive statewide erable distinction in the quality of recharge waters groundwater management statute; and naturally occurring waters could complicate the issue of rights to recapture and whether water of A set of intergovernmental provider-producer equivalent value is being obtained by the entity that relationships exhibiting significant division stored water in the aquifei? of labor, as a provider contracts for the ser- Water replenishment also must take account of vices of several producers in a pair of adjudi- quality impacts. Raising water levels in one portion of cated groundwater basins; agmundwaterbasin can bring them into contact with A set of intergovernmental contractual rela- contaminated soils nearer the land surface. Replen- tionships whereby different service providers ishment in one portion of a basin also may aggravate contract with a producer agency that per- :the movement of an underground “plume” of con- forms a whole range of conjunctive manage- taminated water, pushing it toward production wells ment functions in a nonadjudicated basin that had previously been free of contamination.39 served by a federal water proja A “water czar” who used the appropriation Distribution of Costs permit scheme in his state to regulate groundwater withdrawals and surtace water diversions together; Among the most challenging tasks to be met in A federal-interstate compact that has re- the conjunctive management of surface and ground- sponded to groundwater depletion and con- water supplies is the assignment of the costsa tamination problems by developing conjunc- Coordination of conjunctive use must include provi- tive management plans on a river basin scale; sions for sharing burdens and benefits Ideally, costs and would be borne by beneficiaries in proportion to the benefits obtained.” As will be discussed at some Agreements between local governments for .Iength in Chapter 5, the distribution of costs is the use and operation of water storage in or- connected with water pricing practices, which der to maximize available water yields. through their impact on user behavior has tremen- These examples, some of which trace back to the first duus significance for successful management half of the century, are followed by a discussion of

U.S. Advisory Commission on Intergovernmental Relations 31 recent innovations in institutional design and man- from rural electrification and lower electricity costs agement methods from a number of states and spurreda rapid increasein groundwaterwithdrawals communities in the 1930s. Groundwater also met increasingmunic- ipal and industrial needs. Groundwater pumping Centralized State Administration: continued to expand rapidly during the 1940s and The 1980 Arizona Groundwater Management Act 195Os, and by 1960 the withdrawals were estimated at 5 million acre-feet per year4’ Eventually, the state relied on groundwater supplies to meet 60 percent of In 1903, the Congress authorized the Salt River Project to help develop reliable water supplies for its water uses. Groundwater withdrawal rates were several central Arizona, which was then a territory The Salt River Project was one of the first federal water times greater than natural recharge rates, as much as projects authorized under the Reclamation Act of1902, 11 and 12 times greater in Maricopa and Pinal and one of the first projects completed.M In the 198Os, countiesa At some places, underground water levels the Central Arizona Project (CAP) began to bring a declined by as much as 400 feet from the 1930s to the supplemental supply of Colorado River water to 1980s. Declines along the reaches of the Salt River central Arizona. Depending on the future course of west of Phoenix were more modest, around 100 feet” federal water resource development policy, the CAP Declining water levels increased pumping lifts and may be one of the last federal water projects com- costs, and caused localized problems of land subsi- pleted under the Rec2mrzntiorzAct. The history of water dence, earth fissures, and quality deterioration. management and law in Arizona has been in- By the 194Os, serious consideration was being fluenced by federal-state relations perhaps as much given to the idea of bringing Colorado River water to as by any other single factoc The development of the central and southern Arizona. The Central Arizona 1980 Arizona Groundwater Management Act was Project was planned to carry Colorado River water certainly no exception. over some 300 miles. Bills to authorize the project There are special reasons for the influence of the were introduced in the Congress beginning in 1949.50 federal government on water use and law in Arizo- Opponents from California resisted the authoriza- na.* The stab&aridity and topography render it well tion, claiming that Arizona did not have a right to the endowed with sites for reclamation projects The waters The debate continued in the Congress and the United States also owns 71 percent of Arizona’s United States Supreme Court until the Court deter- territory, including Indian lands to which the federal mined in 1964 that Arizona had the right to the waters. government is committed to supplying water In In 1968, the Congress authorized the Central Arizona addition, the land irrigated by reclamation project Project as part of the Colornllo River Bnsin A~f.5~ water, :vhile accounting for a very small share of The feud with California doubtless helped farmland, has produced a disproportionately large coalesce support for the Central Arizona Project share of farm income. Thus, it is considered vital by among the various interests, who otherwise would the state’s agricultural community, which has always have been in conflict with each other over the had a large influence on politics and policy Further- allocation of local water supplies. Among the basic more, much of the controversy surrounding water conflicts was (and is) a division between the grow- supply in the past half-century focused on the ing demands of residential and commercial users interstate fight over rights to the waters of the and the agricultural irrigation users. Colorado River, a case that involved the Congress and Agriculture accounts for 89 percent of water the United States Supreme Court from the early 1920s consumption. Forty-six percent of all water consumed to the mid-1960s. The determination of Colorado is from mining of groundwater stocks, This cannot be River water rights delayed approval of the Central attributed to the 11 percent of water consumption Arizona project for years. from mining and’municipal and industrial uses. As of Even while the Salt River Project was being 1980,47 percent of irrigated cmpland was planted to designed, water users envisioned a project to bring cotton, a surplus crop; cotton production alone could more water to central Arizona from the Colorado account for all of the groundwater mining Another 16 River At the time, the project was deemed technically percent of farmland was planted to alfalfa hay, which and financially infeasible and was shelved. As Salt consumes more water per acre than any other crop. River Project waters became fully employed to bring The claims on the state’s water supplies by new lands into agricultural production, Arizonans irrigated agriculture are so great that existing supplies turned to groundwater for additional supplies Devel- plus the water from the Central Arizona Project could opment of groundwater in the Salt and Gila River not support them, even if every Arizonan not en- Valleys brought thousands of additional acres into gaged in farming moved out On the other hand, production from the 1930s to the 195Os.& Increased existingsupplies plus CAP water could support a state pump efficiency and lower pumping costs resulting population of as much as 20-25 million people if all

32 U.S. Advisory Commission on Intergovernmental Relations irrigated agriculture ceased, and projections do not indicating that central Arizona faced a severe im- anticipate a population of even 10 million persons by pending water crisis. That report, combined with the 2035. These facts led the first director of the Arizona 1976 decision of the state Supreme Court in Fmners Department of Water Resources to state, ‘The conclu- hesfmmf Company (FICO) v. Beffwy, helped set sion that we have overexpanded our agriculture is competing water rights claimants against each other inescapable.“52 The clear direction for Arizona ground- The FICO decision upheld the superiority of water management has long been to strike a balance water rights claims by overlying agricultural users between these extremes, so that some of the demands of against the appropriation and transportation of irrigated agriculture would be reduced to accommodate water to nonoverlying lands for mining, municipal, the current and anticipated future population and industrial uses. The FICO decision threatened the Yet, efforts to reduce groundwater consumption cities and mines that were dependent on appro- and to shift water away from irrigation toward priated groundwater and precipitated a reexamina- municipal and industrial uses did not meet with tion of groundwater laws?’ The legislature and the much favor Efforts to reform groundwater law have a governor responded with an amendment to the 1948 history as long as that of the Central Arizona Project, Groundwater Code providing for the selective trans- and the two have important points of intersection. portation of groundwater and the appointment of a Two bills, both with the support of Governor study commission. Sidney Osborn, were introduced in the 1945 session The study commission began meeting in Novem- of the Arizona legislature to regulate the use of ber 1977. The cities and industrial interests, which groundwater That Spring, further impetus was given held a combined majority on the commission, pro- to reform when the federal Bureau of Reclamation duced draft recommendations in July 1979, with the indicated that it would not support any central agricultural interests sharply dissenting and issuing a Arizona water project unless the state acted to restrain minority report The conflict over the recommenda- agricultural consumption of groundwater. The legis- tions was so sharp and their potential impact on lature struck a weak compromise, producing the agriculture so severe that the draft was considered to Groundwater Act of 1945, which provided for the be politically infeasible. A “rump group” of the acquisition of groundwater data and information on commission continued to try to reach compromises existing wells but contained no regulation of use.% and work out a framework for a more palatable In 1948, in a third special session called by legislative proposal. Governor Osborn in the midst of a prolonged By all accounts, when these negotiations broke drought, the legislature enacted the Groundwater down, the intervention of Governor Bruce Babbitt Code of 1948, which remained Arizona’s groundwa- provided the initiative for arbitration.% The governor ter law until 1980. It authorized the designation of personally led negotiating sessions among the repre- critical groundwater areas for the restriction of new sentatives of municipal, industrial, and agricultural irrigated agriculture development in areas experienc- water users over a six-month period. When a delicate ing severe overdraft54 compromise was reached on the substantive issues of After initially upholding the 1948 law against a a groundwaterlaw proposal, Governor Babbitt called legal challenge asserting the right to the use of a special session of the legislature, where the Ground- groundwater as a private property right appurtenant water Management Act was passed in a seven-hour to land ownership and limited only by the doctrine of session on June 11,198O. The governor signed the law “reasonable use,” the Arizona Supreme Court re- the next day. vetsed itself and restored the private property reason- Just as in 1945, in 1979 a crucial federal push was able use doctrine to groundwater law. This decision added to the process Secretary of the Interior Cecil reflected the influence of agricultural interests.” After Andrus stated that the department would not support the reversal in 1953, “interest in ground-water legisla- the Central Arizona Project unless the state adopted a tion virtually ceased,“% despite a 1951 repetition of new groundwater law placing restrictions on use. warnings from the U.S. Department of the Interior The magnitude of the influence of that federal about the importance of reform to a favorable condition may be gathered from the anticipated disposition of the Central Arizona Project For the next impact of CAB The importation and use of water, luarter-century, alterations in the understanding of when CAP is operating at its full capacity of 1.2 tizonagroundwater law came only from occasional million acre-feet per yeas is expected to reduce ourt decisions reliance on groundwater supplies in central and The growing conflict between municipauindus- southern Arizona enough to cut the overdraft by as trial water demands and heavy irrigation use was much as two-thirds. heightened by two events in the mid-1970s The The master repayment contract between the U.S. Arizona Water Commission, which was working on a Department of the Interior and the Central Arizona state plan, reported the findings of a 1975 study Water Conservation District specifies that CAP water

U.S. Advisory Commission on Intergovernmental Relations 33 Active Management Areas and Irrigation Non-Expansion Areas in Arizona

Philip C. Briggs, “Groundwater Management inArizona,“]ournal of WaterResources PlanningandManagement, July 1983. must replace, not supplement, agricultural use of groundwater withdrawal and use are essentially groundwatec That is, no new agricultural lands may without restriction (i.e., they are restricted only by the be brought into production using CAP water (except legal doctrine of “reasonable usen), and even within on Indian lands), and existing agricultural users of the AMAs and INAs, operators of small domestic groundwater who receive water from the CAP must wells (less than 35 gallon per minute capacity) are reduce pumping by equivalent amounts.59 In times of generally exempt shortages, municipal and industrial uses of CAP wa- The act established a formal decisionmaking ter have an absolute priority over agricultural uses structure that centralizes authority in the governor Compliance with these contract provisions alone “ef- and the Department of Water Resources (DWR) and its director and creates weaker authority in the local fectively redirected Arizona water po1icyP d The remaining one-third or more of the statewide agencies The law created “a highly centralized and overdraft is to be solved by management and conser- authoritative State Department of Water Resources vation methods. The Groundwater Management Act, with broad powers over management and policy issues,” and a “powerful director”@ The department which repeals and supplants all previous legisla- took over the activities of the Arizona Water Commis- tion,61 designates four active management areas sion and added groundwater management to them. (AMAs) and two irrigation non-expansion areas The governor appoints the DWR director as well (INAs) with boundaries approximately coterminous as the local AMA advisory council members. The with those of major groundwater areas (see Figure DWR director appoints the AMA directors and is 3-l). Eighty percent of Arizona’s population and 70 responsible for making a series of lO-year manage- percent of its water consumption are located within ment plans for each AMA (with tighter water use ‘the four AMAs. The goal of the legislation is to restrictions during each period). The director is autho- establish a balance between water supply and de- rized to determine maximum water duties for irriga- mand within the AMAs by 2025 (except in the tion and water conservation requirements for munic- predominantly agricultural Pinal AMA, where a ipalities and industries within the AMAs, review the controlled mining operation willbe pursued). Within plans of local authorities for reducing groundwater each AMA, a director is responsible for the implemen- withdrawals in critically overdrafted areas, file for tation of the act, with the recommendations of a civil and criminal penalties for violators of regula- five-member AMA advisory council. tions promulgated under the act, set water withdraw- The provisions of the 1980 act apply within the al fees, and, ultimately, take land out of agricultural designated areas. Outside of the AMAs and INAs, production if necessary

34 U.S. Advisory Commission on Intergovernmental Relations The 45year period from 1980 to 2025 has been existing agricultural lands may continue those lands divided into five management periods to establish in production and may withdraw and apply as much step-by-step control and eventual elimination of water as they choose. Irrigated lands may be sold, and groundwater overdrafting. In the first period, from the new owners are equally free to irrigate as were the 1980 to 1990, the Department of Water Resources previous owners. Water withdrawal and consump- registered wells and defined groundwater rights tion for other types of uses may develop without through an application-and-permit program, with restriction. INAs may be converted into AMAs should different classes of withdrawal rights but without such conversion become necessary in order to either many requirements or restrictions. The intention was protect the agricultural economy or preserve the to bring the implementation of the Code along availability of groundwater supplies for municipal relatively slowly at first, to try to heighten compliance and industrial uses6’ with the first stages before the more restrictive Groundwater management activities are fi- provisions are applied. nanced on a 50-50 basis with appropriations from the The act requires that groundwater withdrawal state General Fund and funds raised from water wellswithin designated areasbe registered regardless withdrawal fees assessed against groundwater of their use. Wells above domestic-use capacity in the pumping. Groundwater users who are required to AMA have to be metered and their annual production meter their wells and annually report their pumpage reported.64These requirements will help to generatea are also required to pay the “pump tax.” The with- data base that will be useful in all aspects of ground- drawal fee is set by the DWR director within the water management guidelines of the law, with a cap of $5.00 per acre-foot The first class of groundwater withdrawal rights Up to $1.00 of the withdrawal fee may be used to meet is “grandfathered irrigation rights,” which are operating costs of DWR. Up to another $200 may be awarded to persons who pumped or received used for water supply augmentation after the director groundwater from a well used to irrigate two or more has established an augmentation plan for the AMA (this acres of land prior to 1980. Lands that were not may begin during the 1990s). The remaining $200 of irrigated at some time between January $1975, and the fee is for the purchase and retirement of agricul- January 1,1980, do not qualify for a grandfathered tural land, and cannot be levied until after 2006.@ irrigation right and may not be brought into irrigated The 1990-to-2000 management period calls for agricultural production.6 The clear intention is to the implementation of a plan to augment water freeze the level of irrigated agricultural production supplies. The director may propose any means of that existed in 1980. Reductions in irrigated agricul- augmentation from artificial recharge to weather modi- tural acreage and water consumption are reserved for fication. The ZlO@to-2010 management period includes later management periods. the possibility, after 2006, of purchasing and retiring Grandfathered irrigation rights remain with the agricultural land to meet water conservation goals and land and can be used by a new owner. The groundwa- ensure a balance between demand and supply ter may be used only on the overlying land, however, The law did not specifically provide for conjunc- and the rights remain with the land. If lands with tive management, although it does require the aug- grandfathered irrigation rights are sold for uses other mentation of water supplies It does not provide for a than irrigated agriculture, the rights transfer at a system of using both surface and groundwater sup- predetermined rate of 3 acre-feet per year These plies in ways that take advantage of each source. The provisions of the law restrict the transferability of provisions are designed more to encourage the use of agricultural water rights relative to some other states surface water by denying access to groundwater that use permit schemes for allocating groundwatec when surface supplies are available. For instance, Under the new law, farmers who manage to obtain some kinds of groundwater withdrawal permits groundwater withdrawal rights may find their rights would be granted only if the applicant could demon- less marketable.& strate that no alternatives were available, and if Municipalities, water companies, and irrigation surface water supplies subsequently became avail- districts apply for permits for service area rights to able, the director could require the permit holder to withdraw, transport, and distribute groundwater, switch to surface water6g provided they remain within percapita waterconser- In 1986, Arizona enacted an Underground Water vation requirements set by the DWR director Persons Storage Act that addresses more explicitly a purpose not eligible for grandfathered irrigation rights or to “further the conjunctive management of the water service area rights may apply for groundwater with- resources of this state.“70 Although the law does not drawal permits for non-irrigation purposes. define “conjunctive management,” it does authorize Within the irrigation non-expansion areas, no the Department of Water Resources to issue separate new lands may be brought into irrigated agricultural storage-and-recovery permits to applicants, on a production. No new rights are created. Owners of determination that other water users will not be

U.S. Advisory Commission on Intergovernmental Relations 35 damagedn This permit scheme would provide those management is treated as an issue of great who stomd waters underground with considerable public interest and given high priority in large assurance that they would be entitled to recover those part because of the scarcity of water resources waters, A bill introduced in 1989 would further encour- in the areas with the greatest demandn age the use of underground storage capacity by offering municipalities grants for up to 50 percent of the cost of The absence of a state groundwater management storing surplus CAP water undergmundn code and state administration has been evaluated in a The Arizona Groundwater Management Code number of ways. These assessments generally divide into two categories, one quite critical of the absence of enacted in 1980 was selected by the Ford Foundation in 19% as one of the ten most innovative programs in central authority, and the other supportive of local state and local government It has been praised by diversity and innovation. observers and policymakers, not only for the compm- The Critics. According to critics, the absence of a mise it reached between strongly entrenched political statewide code or administration means that “there is and economic interests, but for its structure and content no groundwater management in California.” Al- The 1980 Arizona Groundwater Management though provisions concerning groundwater are Act has withstood an initial challenge to its constitu- “[slcattered throughout the state Water Code:. . . none tionality The state supreme court upheld the act as a of these Code sections provides California with a constitutional exercise of the state’s police powers.73 needed management program.“% The state’s ap- The activities of the first management period, al- proach is described as “inaction,” “failure,” “inade- though limited principally to the well registration quate,” and “a ‘no action’ groundwater management program and the determination of groundwater system.“79 A representative observation is the follow- rights and issuance of permits, presented a considering “Groundwater meets 40 percent of California’s ably more formidable task than was initially antici- annual water needs, yet is essentially unmanaged.“@ pated, according to the deputy director for engineer- The anticipated consequences of the lack of a ing of the Department of Water Reso~rces.~~ The statewide groundwater program, in the view of these water conservation requirements of the law become observers, are severe. Current arrangements “can more stringent over time, so additional tests of only lead to disaster?i Because local management compliance and success lie ahead.” takes diverse forms in various groundwater basins, it is criticized as “piecemeal,” producing “inefficiency” Interjurisdictional Coordination: and uuncertaintyH’82 Critics point to 42 groundwater Los Angeles County, California basins in the state with some degree of overdrafting, 11 of which were identified by DWR in 1980 as in The approaches to groundwater management in “critical overdraft.” Arizona and California contrast sharply California Conversely critics promote statewide management has not adopted a comprehensive statewide ground- as good in and of itselc which “must be enacted to water management law, but has pursued a policy of pmtect that public interest,“B3 and “would ensm ejkiency encouraging local water users to develop governance in the beneficial use of gmundwater”84 “Effective” stn~ctums for water management (usually through the statewide management of California’s hundreds of combined efforts of special water districts and water groundwater basins would “need to be simple, flexible, users’ aswciations) with the support of state agencies equitable, and inexpensive to administePs such as the Department of Water Resources (DWR). The Advocates. There are other observers who view The state has encouraged neighboring commu- the absence of statewide groundwater management nities sharing similar water resource problems to as rational in light of the degree and variety of local form special water districts to address areawide initiatives and activities. What is seen by critics as an management challenges. This policy has been fol- inadequate and ineffective “piecemeal” approach is lowed in most of the inhabited areas of southern seen by others as “a relatively well-developed and California, and in several areas in northern Califor- diverse system of local groundwater management nia.76 The policy does not appear to indicate neglect of that has evolved on a piecemeal basis over many the importance of water management, but is a years.“u This diversity developed for “good reason,” different approach to the development and imple- since”thehistoryofuseand theproblemsvatiedfrom mentation of management programs: basin to basin.@’ The legislature has moved cautiously with These observers view the legislature’s repeated respect to groundwater problems and legisla- demurrer to adopting statewide management pro- tion has focused on local solutions, with em- posals as “justified because of the diverse nature of phasis on the importance of fashioning man- groundwater problems requiring different types of agement solutions to meet local conditions and local solutions.“BB In fact, most of the “scattered local needs Nevertheless, water resources provisions” in groundwater laws have been initiated by

36 U.S. Advisory Commission on Intergovernmental Relations water useIs seeking authorization to create or extend the River water for California declined with the begin- powers of an existing local governance structure. The ning of operations of the Central Arizona Project, still legislature has usually responded affirmatively more emphasis has been placed on wiser water Artificial recharge projects in southern Califor- management, conservation, and reuse of wastewa- nia, using groundwater basins to store surface waters tern. Environmental concerns and budgetary con- for later use, date back at least to the 1920sB9 Flood straints have largely eliminated the prospect of future waters were moved out of stream channels,diked and water development projects. Local water agencies ponded in permeable areas, and allowed to sink into have focused increasingly on the use of pricing to the underground strata. Temporary dams were con- regulate the demand side of the water supply equa- structed in more permeable stream channels to tion,on reaping new supply availability from conser- obstruct surface flows and increase recharge to vation, and on interlocal agreements and water rights groundwater basins, which could then serve both transfers to move water from wasteful and lower storage and transmission purposes In the 198Os, over valued uses to higher valued uses. 2 million acre-feet of water per year were placed in A 1985 report to the U.S. Army Corps of Engineers underground storage by local water agencies on the management of water resources in the Los In some locations, extensive spreading grounds Angeles County drainage area concluded: “Ground were constructed, some of which were designed to water basins in the area are well managed.. . . Legal recharge the groundwater supply while providing limits are placed on amounts of annual withdrawal surface recreational opportunities for local residents. from various basins, and extensive artificial recharge The Orange County Water District was a leader in this programs have been developed to augment the multipurpose facility development Groundwater natural recharge of the basins.n93 While noting that pumping was taxed by local special water districts to most regulation of groundwater withdrawals by provide the funds for artificial replenishment pro- special districts was concentrated in the southern part grams that primarily benefited pumpers and con- of the state, a 1987 report by the Institute of Public sumers. Later innovations included “in-lieu replen- Administration acknowledged that California “leads ishment” (whereby water useis in basins with access the way” in the special district approach, “in the tobothsurface and groundwater supplies are encour- belief that the complexities of groundwater manage- aged to take surface water in lieu of pumping ment can best be dealt with by specialized units of groundwater when surface supplies are plentiful) government operating at the local or regional rather and the use of reclaimed water for basin *charge and than the state leveL”% sea water barrier projects. Reviewing the development and implementation of these elements of The Evolution of Local Programs. Both critics and conjunctive management, one DWR observer wrote advocates of California’s approach have observed that in 1982: “Many of California’s local water agencies use a lack of defined rights to specific quantities of ground- gmund water storage capacity in the same way water has presented significant barriers to effective surface reservoirs are used to hold water from winter management95 It is not surprising then, that determin- to summer and from wet years to dry years,“gO and ing those rights has been among the first steps taken by described the extent of employment of conjunctive local groundwater agencies The evolution of water management of groundwatersupplies as unmatched supply management in California has relied sttongly elsewhere in the United States. on the use of judicial institutions and proceedings In the latter half of the 197Os, the Rockefeller In many localities, associations of local water Foundation supported a study by the RAND Corpora- users, including municipalities, water service com- tion of water use and conjunctive management in panies, local businesses, and agricultural interests, southern California. While noting that the presence were organized to discuss ways to determine rights. of management activity does not necessarily mean that Frequently, they employed adjudications in order to optimal management has been achieved, the authors take advantage of a process that limited decisionmak- cited the adaptability of existing local programs to the ing to the users affected, allowed for expert investiga- needs of different locations and to changes in conditions of hydrologic conditions, balanced total extractions over time,+” and concluded “Since there already is tions with the available groundwater supply, and a locally developed management program in place in produced enforceable water rights for individual major Southern California basins, there is no need for users Stipulated judgments among the parties were the state to impose yet another management scheme.. . often used to secure mutually agmeable allocations that local management in place should be retained, subject might not have resulted from the strict application of to appmpriate state review? state water 1awsVhe use of adjudicatory processes has Thmugh the 198Os, in the aftermath of the severe yielded such a variety of outcomes that “one could drought of the late 197Os, as population growth almost say that no two forms of gmundwater manage- continued apace and as the allotment of Colorado ment am alike within the group of adjudicated basins@’

U.S. Advisory Commission on Intergovernmental Relations 37 The conjunctive management of water supplies problem. The association chose two different ave- typically also has involved the creation of special nues, one involving special district formation, the water districts or watermasters that control and limit other involving adjudication of rights to groundwa- overdraft through monitoring and enforcement, ac- ter use. Through a special election in 1947, the quire water supplies, replenish the underground separate small communities within West Basin supply and regulate water storage, and protect sup- formed the West Basin Municipal Water District for plies from degradation. Occasionally, a water district purposes of annexing to MWD, acquiring rights to will produce these services itself; in other cases, the purchase Colorado River water, and gaining a collec- district will act as a service provision unit contracting tive representation on MWD’s board of directors. with other specialist producers.” An example of this Meanwhile, MWD faced a problem with its sales system of interjurisdictional relationshipscan beseen of Colorado River Aqueduct water, which was sub in the conjunctive management of water in the Los stantially more expensive than pumping local Angeles coastal plain in Los Angeles County? groundwater or diverting local surface supplies. The coastal plain extends from Los Angeles east Pumpers and diverters throughout southern Califor- to the Whittier area, south to Long Beach, and along nia, faced with the choice between further overtaxing the coast up to Santa Monica. It is underlain by two local supplies or paying the much greater purchase major groundwater basins, the West Coast Basin costs, went on overusing the local supplies. Between along the coast and the Central Basin inland (al- the completion of the project in 1941 and 1949, the though the southeast corner of the Central Basin aqueduct, which was capable of delivering 550,000 extends down to the coast in the Long Beach area). acre feet of water each year, had delivered a total of The dividing line between the two basins is the only 146,000 acre-feet If that situation continued, Newport-Inglewood Uplift, a northwest-southeast MWD’s aqueduct stood a good chance of becoming a geologic disjuncture parallel to the coast The West 25@mile long “white elephant” Some mechanism Coast Basin is recharged almost exclusively by sub- would be needed to shift users away from local surface flow across the uplift from the Central Basin, supplies to imported water which in turn receives most of its replenishment from Through an adjudication begun in 1945, West the forebay area in the vicinity of Whittier Narrows. Basin water users sought to acquire quantified rights Rapid development of the Los Angeles coastal to specific amounts of pumping and to limit the total plain during the first half of this century generated to the basin’s “safe yield.” That adjudication was increased demands for water. These demands were patterned after an earlier one among water users in met largely by use of the groundwater supplies of the the smaller Raymond Basin to the north. Among the coastal plain, which lacks extensive and reliable beneficial outcomes in the Raymond Basin was that, surface supplies. This resulted in declining under- by placing an upper limit on pumping, it forced the ground water levels, which in the West Basin sank parties to meet additional needs from another below sea level. At points of hydrologic contact source-i.e., through purchases of supplemental water between the West Basin and the Pacific Ocean, salt from the wholesaler, MWD. water began to intrude, rendering water in some The West Basin litigation involved extensive wells near the coast unusable by the 1920s and 1930s. hydrologic investigations by the California Depart- The main source of local water supply for the ment of Water Resources as court-appointed referee, communities of the coastal plain along the ocean was, and considerable negotiation among the parties, therefore, severely threatened. resulting in an interim agreement to limit pumping During the 192Os, the Metropolitan Water District in 1955 and a final judgment in 1961. West Basin users of Southern California (MWD) was formed by a faced two complicated and interrelated difficulties. consortium of municipalities in southern California One was that, in order to limit pumping to an extent to develop imported water supplies from the Colora- needed to stop the overdrafting, they would have to do River. MWD’s Colorado River Aqueduct was cut back by nearly two-thirds and replace the water completed in 1941. This gave communities in the coastal with more expensive imported supplies. The second, plain the option of acquiring supplemental water and related, problem was that raising West Basin MWD’s construction and operations, and the tepay- water levels enough to halt sea water intrusion would ment of the substantial debt it incurred, were supported increase levels along the Newport-Inglewood Uplift through property taxes, so access to MWD’s water to the point where water would no longer flow in required annexation to the district from the Central Basin because of lowered water Representatives of West Basin users-municipal- levels there due to overpumping. ities, water companies, local businesses-formed a The West Basin Water Association, DWR, and the West Basin Water Association to determine how to Los Angeles County Flood Control District (now a acquire and pay for additional imported supplies division of the county Department of Public Works) from MWD and how to gain control of the depletion constructed and operated a pilot project in the late

38 U.S. Advisory Commission on Intergovernmental Relations Figure 3-2 Simplified Pictorial Representation of Conjunctive Management in Los Angeles County, California

Source: Warren Viessman and Claire Welty, Water Management: Technology and Institutions (New York: Harper and Row, 1985)

1950s and early 1960s to create a barrier against sea Water users in the West and Central Basins water intrusion along the coast by injecting fresh wa- needed to achieve several goals: limit groundwater ter underground to form a pressure ridge. The pilot withdrawals in the Central Basin; raise water levels in project was successful, and a full-scale barrier project the Central Basin and keep them lower in the West was constructed. Operation of the barrier was fi- Basin in order to maximize the subsurface flow into nanced temporarily through the creation of an im- the West Basin; find a means to finance and operate a provement zone within the county flood control dis- replenishment program in Central Basin; and find a trict The creation of the barrier allowed water levels permanent means for financing and operating the in the West Basin to be kept lower, thereby increasing sea water intrusion barrier projects. Through another the amount of recharge flowing in from the Central special election in 1959,residents in both areas agreed Basin and reducing the amount by which pumping to form the Central and West Basin Water Replenish- had to be cut back ment District under authority of the1955 state Water Replenishment District Act. In the 195Os, partly at the instigation of West Once formed, the replenishment district initiated Basin users who saw their fresh water supply threat- an adjudication of water rights in the Central Basin. ened by continued overextraction upstream, Central This action began in 1962 and ended with a final Basin users formed a Central Basin Water Association judgment in 1965. At that point, water users in the and began to explore possibilities for reducing West and Central Basins had enforceable rights to gmundwater withdrawals and securing additional specific quantities of water, which could be (and have supplies and a groundwater replenishment program. been) exchanged, leased, or sold. Both basins were The Central Basin Municipal Water District was placed on a modified safe-yield operation. A replenish- formed and annexed to MWD in 1952, ensuring ment program was implemented, involving local n+ access to Colorado River watec As in the West Basin charge and artificial recharge with imported and and Raymond Basin, Central Basin pumpers did not reclaimed watec Sea water intrusion was effectively immediately switch to imported watec However, also halted by the barrier pmjects in the 195Os, sea water intrusion began to appear in the The total conjunctive management scheme for Long Beach vicinity, so Central Basin water quality was the Los Angeles coastal plain is illustrated in the threatened as a nzsult of groundwater overdrak simplified diagram in Figure 3-2. The Central and

U.S. Advisory Commission on Intergovernmental Relations 39 West Basin Water Replenishment District, with its reduces the capacity MWD has to construct and staff of three, is the public provision unit that maintain for dry periods, so the MWD board has organizes this program. encouraged this practice thmugh the lower price of One question that arises about the coastal plain replenishment water Similarly, in Yeats when it has program is why the replenishment district was surplus water in the State Water Project, the California created when the West Basin and Central Basin water Department of Water Resources has offered water at districts existed. The districts, like many others in reduced prices to local districts for artificial recharge. California, were formed to contract for the delivery of Thus, each yeas the Central and West Basin Water surface water Such districts generally do not have Replenishment District anticipates the approximate artificial recharge programs or pumping asses mix of surface water supplies and groundwater sments;@’ or correspond with the boundaries of pumping within the coastal plain (based on the groundwater basins. These districts typically repre- anticipated availability of surface water supplies), sent political jurisdictions and may be formed by the estimates the amount of replenishment and barrier people of any county or portion of a county, and may water needed, and arranges the purchase of that include incorporated and unincorporated areas (al- water and the operation of the spreading facilities though if any part of a municipality is included, all of and barrier projects. It then assesses the purchase and it must be included). operations costs to the water users. The conjunctive Therefore, neither municipal water district was management program, now beginning its fourth in a position to finance and operate the replenish- decade, is accomplished through a network of inter- ment of the Central and West Basins However, as governmental arrangements that coordinate the ac- specialized agents and contractors for purchases of tions of specialized producers. supplemental surface water, they were ideally suited to. the acquisition of waters for recharge programs, Intergovernmental Contracts: The replenishment district had authority to finance The Solano Project and operate a recharge program, and the needed jurisdictional boundary fit The replenishment dis- Relationships among governmental organiza- trict became a customer for the supplemental water tions engaged in water supply can be arranged by secured by the municipal water districts The replen- intergovernmental contracting in a number of ways. ishment district purchases supplemental water A government such as the Central and West Basin through the municipal water districts The water Water Replenishment District may contract with purchases are financed through taxation of ground- several service producers. In other places, several water pumping governments may make contractual arrangements The replenishment district owns extensive re- with a single producer that performs several manage- charge facilities, but it does not operate them. The Los ment tasks. Solano County in northern California has Angeles County Flood Control District (now in the developed arrangements between a federal agency, a Department of Public Works) has specialized person- county district, several municipalities, and an irriga- nel with extensive experience in operating reservoirs, tion district and it operates the replenishment district’s spreading The Solano Project captures the waters of Putah program in the Central Basin forebay The Department Creek, which drains the eastern slope of the coast of Public Works also operates the sea water intrusion range of mountains in Napa and Iake counties. barrier project for the replenishment district Monticello Dam impounds Putah Creek waters near The Los Angeles County sanitation districts the convergence of Napa, Solano, and Yolo counties have operated water reclamation plants at the and forms Lake Berryessa. Waters from Lake Berryes- Whittier Narrows and nearby San Jose Creek for sa are released into a smaller reservoir, Lake Solano, years. With authorization from the California De- from which water is diverted by means of the Putah partment of Health Services, the replenishment Diversion Dam into the Putah South Canal, which district purchases as much reclaimed water as conveys water toward the farmland and cities of possible from the sanitation districts, which release Solano County, one of the fastest growing California the water to the spreading facilities. Locally re- counties. As of 1980, the project irrigated about 60,000 claimed water is much less expensive than water acres of farmland on about 900 farms, and provided imported from northern California or the Colorado supplemental water for three U.S. military installa- River, so the replenishment district buys all it can. tions and for urban and suburban areas with a The metropolitan water district, the major im- combined population of about 300,000. ported water wholesaler, also offers surplus replen- The county’s climate is semi-arid, with an aver- ishment water at a lower price than its treated, filtered age annual rainfall of 17 inches, almost all of which regular water Conjunctive use of groundwater sup- falls in November, December, and January During plies lowers the demand for imported water and the summer months, Solano County residents (espe-

40 U.S. Advisory Commission on Intergovernmental Relations cially farmers engaged in irrigated agriculture) have tion District for the operation of the Putah South relied heavily on groundwater irrigation, which Canal and the related distribution facilities The resulted in a falling water table through much of the district subcontracted the canal operation to the first half of this century The Solano Project had the irrigation district, which already operated and main- same purpose as most water development projects in tained the distribution system. the West-to capture surplus waters when they were Initially the Bureau of Reclamation operated and available in order to increase the supply throughout maintained the headworks of the Solano Project-the the year (and across years), and to relieve some of the Monticello Dam, Lake Solano, and the Putah Diversion demand pressure on local groundwatet Dam. The irrigation district also has constructed and The Solano County Board of Supervisors formed operates an electrical power plant at Monticello Dam a Solano County Water Council in 1940, which As a result of contracting and subcontracting, worked on securing federal support for the project neither of the parties to the Solano Project master The project was authorized by the Congress in water contract-the U.S. Bureau of Reclamation and November 1948 under the Reclamation Act of 1939 as the Solano County Flood Control and Water Conser- part of the plans for development of the Central vation District-performs any direct operation or Valley area. In February 1948, the Solano Irrigation maintenance. The bureau monitors some project District, covering most of the irrigable land, was operations and publishes an annual report, and the formed to finance and operate a distribution system county district accounts for the allocation of and for project water lo1 In 1951, the Solano County Flood wholesales imported water from the Solano Project Control and Water Conservation District was autho- and the State Water Project Thus, in 1988, while the rized by the state legislature and activated by the Solano Irrigation District had a staff of 66 persons, county board of supervisors to represent the various most of whom were engaged in water supply, the staff entities desiring water from the Solano Project and to of the Solano County Flood Control and Water contract with the U.S. Bureau of Reclamation (and Conservation District, the main contractor for the subsequently with the California Department of Solano Project, consisted of one person in the county Water Resources for water from the State Water Department of Public Works. Project’s North Bay Aqueduct).lM For the Solano Project, then, the irrigation district Construction began in 1953. Monticello Dam and operates the dams and canals that comprise the water the Putah Diversion Dam were completed in 1957, supply and conveyance system, the electric pow- and the Putah South Canal was completed in 1959. er-generating facilities, and sets of water wells-a The Solano Irrigation District constructed the $15 wide array of activities for an “irrigation district” million distribution and drainage system, which These arrangements have placed the district in a consists of several miles of canals and pipelines and position to manage its own surface and groundwater was completed in early 1963. The system was fi- supplies conjunctively, and to enter into agreements nanced with an interest-free loan from the U.S. with water retailers in Solano County (such as the Bureau of Reclamation, with repayment scheduled municipalities and the Maine Prairie water district) over a 40-year period ending in 1999. It is estimated for distribution and use. that this arrangement saved the district approximate- The irrigation district and Suisun City have a joint ly$3 million in construction costs and about one-third powers agreement whereby the district provides mu- in financing costs103 nicipal and industrial water to newly annexed areas The U.S. Bureau of Reclamation entered into a while the city agrees to keep those areas within the master water contract with the Solano County Flood territory (and thus the taxing authority) of the district Control and Water Conservation District for the Suisun City therefore provides its residents with water distribution of the waters developed by the Solano from alternative sources that include locally pumped Project The district provides water to the Solano groundwater, water imported from the Solano Project, Project’s “member units” -the cities of Fairfield, and water imported from the State Water Ptoject Suisun City, Vacaville, and Vallejo, the Maine Prairie thmugh the North Bay Aqueduct Water District, the Solano Irrigation District, the The City of Fairfield, which relies almost entirely University of California at Davis, and the California on imported water, has an exchange agreement with Medical Facility at Davis (both of which are located in the irrigation district The district finds irrigation uses Yolo County). The Solano Irrigation District is entitled for some reclaimed wastewater from the city and to 74 percent of the waters developed annually by the provides the city with Solano Project water project Another 7 percent is estimated lost to evapo- As Solano Count urbanizes, water previously ration and seepage, and the remaining 19 percent is devoted to agricultural uses is being gradually shifted split among the other member units. to municipal uses With a service area that encom- The Bureau of Reclamation contracted with the passes much of the agricultural land in the county and Solano County Flood Control and Water Conserva- reaches to some of the municipalities, the irrigation

U.S. Advisory Commission on Intergovernmental Relations 41 district can assist with that transition. The City of Dixon, Appropriation Permits, Offsets, which has been supplied by a private water pmduw and a “Water Czar”: the California Water Service Company, has arranged to The New Mexico State Engineer purchase additional project watec The Maine Rairie water district, which is located south of Dixon and has an entitlement to project water but no conveyance New Mexico relies heavily on groundwater for facilities, has given over part of its entitlement to the domestic, industrial, and irrigation uses. The contin- ’ district in exchange for delivery of tailwaters to its ued availability of supply from this limited resource is service area an important concern. While recent attention has The Putah Plain groundwater basin is located in focused on a rash of serious water contamination and Solano County, partially within the territory of the pollution incidents, sustaining sufficient water quan- irrigation district, and has a sustainable yield of about tity has been a priority since before statehood.l04 New Mexico adopted the doctrine of prior appro- 140,000 acre-feet per yeat The irrigation district coordinates the conjunctive use of Solano Project priation for acquisition of rights to groundwater use water and Putah Plain groundwatet The district in 1931, the oldest “continuously employed prior replenishes the groundwater basin with water from appropriations system in groundwater in the Putah Creek uses more project water in wet years, West.“‘Os Enactment of the statute was promoted by and draws mom heavily on gmundwater from the farmers and other civic leaders in the vicinity of Putah Plain basin in dry yeaq and operates deep wells Roswell, where the artesian groundwater basin that in the Putah Plain that produce gmundwater and draw supplied the agricultural economy was exhibiting more surface water into the basin from unlined canals loss of pressure. and natural stream channels These practices enhance Several other western states also made ground- the total long-term yield, helping meet the additional water subject to prior appropriation. The New Mexi- demands of a growing u&n population without co legislation authorized the state engineer to desig- always being taken away from agriculture. nate critical groundwater areas and to administer Conjunctive practices in Solano County in- through appropriation permits the allocation of volve a balancing act, however. It is possible to groundwater within a basin, on the petition of at least 10 percent of the ~sers.1~ If unregulated exploitation overfill the Putah Plain basin, especially in the neighborhood of Putah Creek Depths to under- “reaches a point where it threatens the rights of ground water there are not very great, and in years existing users, the petition mechanism can be used to of surplus precipitation and natural percolation, it call on the engineer to assess and administer the is possible for the water table to rise sufficiently rights within the basin.“lmThe appropriation permits near the land surface to saturate and rot the root restrict pumping to a specific quantity and set priority of rights in accordance with seniority (This pattern systems of crops. So,at times (especially in theearly spring of years with above-normal rainfall), the was adopted by other states with significant artesian groundwater supplies, such as Utah and Nevada, irrigation district has to turn on its underground since artesian basins exhibit problems from overuse pumps, not because there is too little surface water, relatively sooner). The New Mexico state engineer but because there is too much groundwater too also was made responsible for developing informa- close to the surface. Regulating conjunctive use tion about groundwater resources and promoting the thus involves keeping underground water levels expansion of irrigation with groundwatec within a range where storage values are taken In the Pecos Basin, an aquifer with significant advantage of without damaging overlying uses. recharge where groundwater rights have been adju- Recently, the irrigation district and the munici- dicated and quantified, appropriation permits limit palities have formed the Solano Water Authority to total annual extractions to around 400,000 acre-feet’@ discuss with the Bureau of Reclamation the purchase This limitation places the basin on a “safe-yield” of the Solano Project The contractual arrangements operation, halting the decline in water levels and the for operation and maintenance of the project, com- lengthening of pumping lifts Within the basin, appm- bined with the district’s operation of the Monticello priation permits are transferable among pumpers, thus Dam power plant, have prompted consideration of moving groundwater toward valued uses and avoiding simply “buying out” the ownership of the project the retention of obsolete permits The U.S. Bureau of Reclamation has expressed some However, it is impractical to attempt to manage interest in turning over the operation and ownership of many groundwater basins in New Mexico on a water projects to local users (although this would perpetual “safe- yield” basis because, as in neighbor- require congressional authorization). Thus, it is possible ing Arizona and the high plains of the Texas Panhan- that the bureau may in the future be removed from the dle, they receive little average annual recharge. set of contractual arrangements for managing water Therefore, the state engineer reserves one-third of the resources in Solano County estimated balance of water remaining in the basin

42 U.S. Advisory Commission on Intergovernmental Relations and allocates rights to pump (“mine”) the remaining long-term mining of the underground stock of water two-thinls in such a way as to deplete the stock over a with the conjunctive management of the interrelated &year period. lo9 Individual appropriators are awarded surface and groundwater supplies The surface wa- permits entitling them to the use of a specified quantity ters have long been fully appropriated. Any diminu- of water per year over the 40 yearsno tion of the river flow would invade the rights of some Individual use rights are protected from the surface water appropriators. On any permit applica- impact of pumping on the lateral underground tion to appropriategroundwater from the Rio Grande movement of groundwater by making sure that wells basin, the engineer analyzes the relationship of the are not placed too close together Lateral groundwater requested pumping on the stock of groundwater and movement is also taken into account through the use its effect on surface flows. Depending on the mmain- of artificial boundaries, such as those of townships, to ing water stock in the basin, a permit may be granted geographically subdivide aquifers that extend be- conditioned on the applicant purchasing and retiring neath a large land area. For purposes of exchanging sufficient rights from senior appropriators on the Rio appropriations permits, well owners and operators Grande to offset the diminution of stream flow caused within such an artificial subdivision are treated as by the proposed pumping.l14 pumping from a common aquifer The theory behind The engineer offered to issue a conditional this system is that the lateral movement of groundwa- permit to Albuquerque when the city sought to ter means that extractions and return flows from wells appropriate 6,tXKl acre-feet per year from the Rio in close proximity will probably have a significant Grande aquifer from wells located within 6 or 7 miles impact on one another, while the effects of extractions from the river. It was estimated that roughly half of and return flows from wells that are widely separated the water extracted would come from underground (albeit using the “same” aquifer) are, as a practical stocks and the other half would diminish the surface consideration, negligible.111 flows. The engineer held that the requested pumping Appropriation permits may be transferred be- would impair the surface water rights of senior tween pumpers within one subdivision of an artifi- appropriators and suggested the conditional plan to cially subdivided basin. Well spacing regulations offset the effects of the groundwater appropriation. avoid impairment of use rights, and the subdividing The city challenged the ruling, but the New Mexico of basins keeps the benefits of return flows within the Supreme Court upheld the offset plani15 same general area. Transfers of permits between The offset system recognizes the connection subdivisions are allowed, but they are restricted to the between groundwater and surface water and that amount of water estimated to be the original permit surface water is fully appropriated, but nonetheless holder’s consumptive use, rather than the amount allows new pumpers to undertake water develop- pumped. 112 To the users of a common aquifer (or ment from the Rio Grande aquifer if they purchase within close proximity of each other, as in an aquifer surface water rights. This extends market principlesto subdivision), there is no material difference between the whole water resource,rather than treating surface losing from the common supply the amount of water water rights under one system and groundwater consumptively used (extracted net of return flows) on rights separately overlying land, or having that amount pumped and The New Mexico system has yielded important exported to another location. benefits and offers useful lessons. Surface and The state engineer’s office has faced its greatest groundwater development and use are being moni- conjunctive management challenge in the adminis- tored and administered in 31 groundwater basinsu6 tration of the Rio Grande aquifer. The aquifer is Using designated basins shares an advantage with hydrologically connected with the Rio Grande River, special districts of limiting “the number of people and extractions from the aquifer can lower the stream involved in the decision to those who are actually flow of the river There is very little rainfall in the affected by the decision.“l*’ The New Mexico ag region and not much recharge to the underground preach also defers the activation of a rulemaking supply. There also is no readily available external process “until there is a demand for rules by actual water source from which to import water for artificial groundwater users n118 Thus, communities of interest recharge of the Rio Grande system,u3 so the sur- are defined and involved in rulemaking. face-to-groundwater relationship is zero sum over Allowing exchanges of use rights enhances effi- the long term: groundwater extractions have the ciency by directing use of the resource toward those same ultimate effect as diversions from the surface who value it more. A strict seniority system of water flow, but with a longer time lag rights lacks the flscibility to adjust to shifts in the In 1956, the state engineer designated the Rio value of uses of water Allowing transfers of pumping Grande Underground Water Basin as a critical basin, rights has been described as approaching an optimal subjecting it to the appropriation permit process. The system of allocation.l19 The offset system brings to administration of the basin combines controlled light an important benefit of conjunctive manage-

U.S. Advisory Commission on Intergovernmental Relations 43 ment This administrative variation on water ex- While competition between jurisdictions can change systems, allowing junior appropriators to sometimes lead to better and more efficient service “buy out” the rights of their seniors, “might enable delivery alternatives, competition in the use of a greater productive water use without detriment to the common resource can produce undesirable results. remaining senior stream rights, except for a risk of Persons on each side of a common boundary under- miscalculation.“120 lain by a common aquifer may respond to incentives Three qualifications should be noted about the to develop the msource as rapidly as possible in order New Mexico appropriation permit,offset, and “water to capture most of its benefitsJx If persons on both czar” system First, the state engineer’s office has sides respond to the same incentives in the same functioned with notable stability and expertise in part ways, then the “race to the pumphouse” in the because one person served in that capacity for four interstate context can yield wasteful overexploitation decades. In Steve Reynolds, New Mexico had a true and ultimate harm to the resource. In areas where “water czar” His extensive experience and intensive population growth and other sources of water de- knowledge of water resources and use patterns were mand is greatest, these kinds of interstate competition invaluable in the administration of the per- may be expected to intensify However, the extent of mit-and-offset system, minimizing the likelihood of problems of interstategroundwater depletion maybe erroneous calculation. somewhat ovetstated.‘25 Second, New Mexico is not the only state to have Where interstate water problems do exist, the such a system. The Nevada system includesappropri- most common recommendation is to develop and ation permits issued by the state engineer, who also implement an interstate compact, described by one designates overdrawn basins as critical basins And in author as “the primary means of coordinating and a case in Colorado in the 197Os, an offset system was managing groundwater resources in several Eastern used to resolve a controversy in which a subdivider staksN1~ h-&&ate compacts are cited as preferable to proposed to pump groundwater that was tributary to resource depletion and destruction resulting from inter- an overappropriated stream. The stream users agreed state competition,and to alternative forms of resolution, to a plan whereby the subdivider would purchase such as equitable apportionment of a water supply by sufficient reservoir water upstream to release into the adjudication. n’ Compacts are preferred for their flexibil- river to offset the loss in stream flow resulting from ity finality, and use of experts, and as less timeconsum- the groundwater extractions.‘21 ing and expensive than litigation.128 Third, the state engineer’s office is not the only Interstate compacts can provide for the coordi- institution involved in the management of ground- nated use of a common resource among states, as in water supplies. Various “state and local agencies the example presented below. There also are some (including political subdivisions) charged with wa- cautions to be observed. First, there is no guarantee ter-related responsibilities have been modernized in that a state whose residents are overexploiting a order to provide ample latitude for their function- groundwater resource at the expense of another state ing.“12 Groundwater basin adjudications also have will enter into an interstate compact.12g Second, clarified rights and relationships of users The original transaction costs of reaching an interstate compact, recognition in law of the hydrologic inseparability of which not only involves the consent of the Congress but connected surface and groundwater came, not from the also squires unanimous adoption by the affected states, legislature or the enginee? but from the courts can be very high. Thus, not every interstate compact is developed with less time and expense than would be Interstate Competition involved in an adjudication Development and ratifica- and Interstate Coordination: The Delaware River Basin tion of the Colorado River Compact, for example, spanned five decades, and still ended up in the United States Supreme Court As often noted, groundwater basins do not neces- Third, it is not obvious that the advantages cited sarily conform to the boundaries of state or local for interstate compacts over adjudication always political jurisdictions. When a single water resource apply Flexibility, finality, and expert development of system stretches across two or more states, more settlements can be advantages of the adjudicatory interjurisdictional difficulties arise. The states are sovereign entities, and the laws of water rights and process as well. Based on experience, there is no ownership are state laws. The most fundamental reason to believe that interstate compacts are less issues of water management (who has what kinds of likely to become the subject of recurring litigation rights to extract and divert how much water) there- than are equitable decrees. fore are potentially in dispute. Yet, the parties to those Finally, there are circumstances in which an disputes often are reluctant to develop an interstate equitable apportionment of an interstate groundwa- management system or to accept practices imposed ter resource is a reasonable alternative. The most by the federal governmentm often discussed interstate aquifer is the Ogallala

44 U.S. Advisory Commission on Intergovernmental Relations Aquifer of the Great Plains region. Yet,as one observer some of the more concentrated areas of groundwater noted, “Clearly it would be impractical to consider the extraction (such as those near Wilmington, Delaware, entire Ogallala Aquifer as one common aquifei? and Camden, New Jersey) away from the confined While users in all eight states that overlie that areas of the underlying aquifers, where pumping is resource derive water from a “common” supply, it is most likely to form depressions that lengthen pump- not at all obvious (because of the physical characteris- ing lifts and aggravate quality degradation problems. tics of the aquifer) that withdrawals by residents of Moving pumping to unconfined areas of the aquifer southern South Dakota or Nebraska are contributing groups brings it farther from the threats to water materially to groundwater decline in the Texas High quality and into areas that can be more readily Plains, or that losses and gains from the depletion of recharged with surface water supplies, which allows the aquifer fall evenly across users. greater advantage to be taken of the groundwater As noted with reference to New Mexico’s state reservoir’s capacity engineer’sartificiallysubdividinglargegroundwater Step Two is to compensate areas where groundwa- basins, while “the lateral movement of groundwater ter withdrawals need to be curtailed with additional would render two wells 2 miles apart as pumping surface water supplies or with groundwater pumped from the same common aquifeer, this lateral move- farther upstream and imported.135 This is especially the ment may, for all practical purposes, be ignored if the case in the areas of Camden, New Jersey where two wells are 50 miles apart.“131 Where the physical groundwater withdrawals ate to be phased out over the characteristics of an interstate aquifer warrant it, next two decades states can manage and use equitably apportioned Step Three is to increase the utilization of under- shares of the water supply and storage capacity ground storage capacity The commission’s policy within their own legal and institutional frameworks. originally restricted groundwater withdrawals to These considerations suggest that neither interstate sustainable yield. While this goal is desirable over compacts nor equitable apportionments are always a long periods, within a given year it fails to provide the superior institutional form of meeting the challenges of flexibility to use the groundwater supplies and stor- intestate competition and coordination Different chal- age capacity of the coastal plain to their fullest lenges will call for different resolutions potential in maximizing water supplies without An example of the use of a federal-interstate endangering resource preservation.136 compact (an interstate compact to which the federal The commission depends for its success on the government is also a party) is the Delaware River cooperation of the states The ability of the commis- Basin Commission (DRBC). DRBC and the Susque- sion to designate “pmtected areas” within the Delaware hanna River Basin Commission are the only two River basin requires that the states cooperate in enforc- interstate water management institutions with exten- ing pumping restrictions that are deemed necessary to sive groundwater management powers.132 securing an adequate supply for the region. DRBC members are the governors of New Jersey, The commission also needs states’cooperation in New York, Delaware, and Pennsylvania, plus a meeting information requirements. For example, presidential appointee to represent the federal gov- New Jersey terminated an old statute that exempted ernment (usually the Secretary of the Interior). The water users who held permits issued before 1947 from commission’s management activities proceed accord- reporting their groundwater withdrawals. These ing to a comprehensive plan, prepared by staff grandfathered permits clouded the accuracy of esti- members and approved by the commission. mates of total groundwater extractions in the coastal There is considerable interdependence of surface plain. In 1980, the New Jersey Water Supply Manage- and groundwaterwithin the Delaware River basin,‘% ment Act extended the reporting requirement to all and the commission is committed to meeting the pumpers, giving the state and DRBC better information water supply needs of the coastal plain through with which to develop and implement water manage- conjunctive use of surface and groundwatersupplies. ment 137 DRBC will need similar state assistance as The staff has identified problems within the plain problems of water contamination are addressed. resulting from excessively rapid depletion of parts of the Potomac-Raritan-Magothy aquifer group. Pump- Interlocal Coordination ing in areas of this heavily urbanized corridor has resulted in the appearance of cones of depression in The problem of groundwater resources crossing the underground water levels. These cones attract previously established local government boundaries sources of contamination (most often organic com- is among the most commonly discussed management pounds such astrihalomethanes and tetrachloroethy- challenges. Certainly, local autonomy over water lene) and sea water intrusion.‘34 supply decisions increases costs in multijurisdictional Step One in DRBC’s conjunctive management cooperation in source development and allocation.‘38 program, therefore, has been to attempt to relocate However, there are alternative arrangements for

U.S. Advisory Commission on Intergovernmental Relations 45 coordinating resource use that do not match existing tions to store water underground. Staff assistance is local jurisdictional boundaries. Special water dis- provided by the Upper San Gabriel Valley Municipal tricts, adjudications, and the designation of ground- Water District water areas by a state agency are all possibilities for Parties to cyclic storage agreements with the fitting decisionmaking processes to the resource and Main San Gabriel Basin watermaster can import to diverse communities of interest. water into the basin and store it there for subsequent The difference between the geographical distri- recovery The watermaster has entered into such bution of groundwater supplies and governmental agreements with the neighboring San Gabriel Valley bodies creates other challenges It is possible, for Municipal Water District (SGVMWD), which man- example, that a groundwater basin with desirable ages water supply over the territory of four cities, and storage capabilities could underlie one community with the Metropolitan Water District of Southern but not another contiguous or nearby community, California through its local member agency the even though both are located in a region where Upper Valley district140 These are useful contractual demands for surface and groundwaters approach or arrangements for the districts because they must plan exceed supplies.‘39 years in advance for importation of water from the Possibilities for ameliorating such disparities State Water Project, and the variability of climatic include: conditions can result in considerable surpluses of a) Regulatory resource redistribution by a re- water at some times and deficits at other times.141 gional or statewide agency; In the preparation of the judgment settling the adjudicationof water rights in the Main San Gabriel b) Physical resource redistribution through Basin, the users recognized that they had a valuable construction and operation of a project that resource in the underground water supply and in the conveys water from where it is to where it is storage space. They agreed to allow the use of this not and creates storage capacity in places latter resource under the regulation of their own where it did not exist and representative policymaking body. Interlocal coordi- c) Interlocal coordination, whereby communi- nation in this case generates a mutually beneficial ty interaction creates arrangements that outcome from a disparate geographic distribution of meet resource needs while preserving the water supply, storage, and demand. political independence of differently situated communities of interest, and avoiding Metropolitan Washington, DC. In what has been (or at least minimizing) the need for regula- termed the “state-of-the-art for supply manage- tory or physical redistribution schemes and rnent,“l& agencies in the Washington, DC, metropoli- their attendant costs. tan area worked out an arrangement for operation of surface reservoirs that reveals additional benefits While considerable past stperience has focused on the from interlocal coordination. Analyses and forecasts first and second of these possibilities, interlocal coon& nation deserves attention for the benefits it can produce. of supply and demand had for decades predicted a water crisis for the region by 1980. Plans for address- As three examples illustrate, even situations that would appear to be characterized by strong and deep ing that crisis included the construction and opera- conflicts between communities, or that seemed to tion of several (in one plan, as many as 16) new reservoirs.‘43 Clearly, such plans involved consider- require heavy investments in public works projects, have been ameliorated by negotiated coordination. able expenses and environmental impacts. A 1977 restudy by the U.S. Army Corps of The Main San Gabriel Basin, the metropolitan Wash- Engineers (authorized by the ington, DC, area, and the Owens Valley-Mono Lake W&r Resources DeveZoy Basin provide cases of coordination in the use of m&Act of 1974) came to a different conclusion -that the region was not necessarily short of water if water supply and storage to improve overall availability and allocation and to avoid difficult problems. existing supplies and storage were used more efficiently. The solution lay in coordinating the supply The San Gabriel Valley. In the Main San Gabriel organizations’ actions rather than in technology and Valley Basin in Southern California, water storage concrete.‘49 Over the ensuing five years, officials of capacity is monitored by the Main San Gabriel Basin the 25 water supply agencies in the metropolitan area watermaster, a court-appointed policymaking body (three of which account for 95 percent of the water composed of nine representatives of water producers treatment capacity) formed a regional task force that and local water districts. As the result of an adjudica- worked with the Corps of Engineers on improving tion of water rights, the watermaster was given management of storage capacity. In July 1982 (in a custody and control of storage and (along with fraction of the time needed for designing, financing, several other responsibilities) is authorized to enter and constructing surface storage facilities), eight into agreements with other water supply jurisdic- agreements were signed for maintaining flows of the

46 U.S. Advisory Commission on Intergovernmental Relations Potomac River, for allocating water in periods of low At roughly the same time, Los Angeles, the flow, for coordinating operation of existing storage Metropolitan Water District of Southern California, facilities, and for sharing the costs of any future and the Mono Lake Committee (an environmental storage capacity expansi0ns.l” action group) agreed to support a legislative bill to As a result of these interlocal arrangements, only preserve and protect Mono Lake. The agreement one small new physical facility was required, and would attempt to shift some of Los Angeles’ diver- adequate water supplies and storage are assured to sions away from the streams feeding Mono Lake, 2020J46 These arrangements are estimated to have while providing financial support for waterdevelop- saved between $200 million and $1 billion over the ment to help the city make up part of the resultingloss previous plans.r47 of water supply.152 A special concern was the potential environmen- The Mono Lake and Owens Valley controversies tal effects, especially on the tidal estuary downstream seem to be some of the most intractable in the from Washington, either from failure to act (resulting water-management field. The implementation and in the eventual loss of sufficient Potomac flows to outcome of the interlocal agreements cannot yet be maintain the ecosystem) or from reservoir construc- foreseen, but they signal the possibility that conjunction. The interlocal coordination should maintain tive management can emerge even in places facing sufficient flow in the Potomac to preserve environ- difficult issues of environmental preservation and mental values.‘@ These benefits have been achieved restoration, area-of-origin protection, and large-scale without the addition of a new regional management interbasin water transfers institution or the elimination of community water In fact,according to one view, it is precisely when systems; without the construction of a great concrete water management issues are complex and delicate complex; and with increased emphasis on conserva- that interlocal arrangements are the most desirable tion, efficient use, and environmental protection. alternative for intergovernmental relations. It may be the case that Los Angeles and the Owens Valley. One of the most . . . negotiation among directly interested par- renowned interlocal disputes concerning environ- ties can develop more flexible and thorough mental protection and water supply management solutions than court decisions, state agencies, has persisted through most of this century between or legislatures. Water resources and their re- the Los Angeles Department of Water and Power and lation to the environment are complex, and the communities of the Owens Valley and Mono depend on local characteristics People have Lake Basin on the eastern slopes of the Sierra Nevada. well-defined preferences that vary among lo- Los Angeles began diverting surface and groundwa- calities A court decision, administrative ter from the sparsely populated region after 1910, rulemaking or a legislative committee cannot extended the diversions to the streams feeding Mono develop water management programs based Lake in the 1940~5 and doubled its aqueduct capacity on the integration of scientific information on in the 1970s. Water levels in Mono Lake (a significant local water resources and the environment aquatic habitat for brine animals and migratory fowl) that meet the needs of both the area-of-origin have declined markedly and signs of vegetation stress and the water exporter efficiently153 and decline have been noted in the Owens Valley14q From the late 1950s to the 198Os, there was Additional State and Local Innovations considerable controversy over Los Angeles’ actions, followed by several lawsuits by environmental In addition to the cases above, there are many more groups and local residents and officials, and occasion- cases of institutional innovation by state and local al introduction of legislation to address the issues In governments Following are a few additional examples 1983,officialsof InyoCountyandLos Angelesformed the Inyo/Los Angeles Standing Committee “to devel- Water Rights and Transfers. Some states aredevelop- op a groundwater management plan that would ing and implementing statewide groundwater laws, protect the Valley’s environment while supplying while others have targeted specific issues154 Some LA with water”*50 states are defining surface and groundwater rights to In March 1989, negotiators for the county and the allow private and public suppliers to operate with city announced a preliminary agreement to settle both kinds of rights or to substitute one source for the much of the dispute. After some initial local opposi- other, while other states are strengthening their tion, revised agreements were reached in August 1989 to positions as water wholesalers and regulators in protect the native vegetation and wildlife of Owens attempts to encourage conjunctive management Valley and to preserve the city’s ability to divert water In Mississippi, a state heavily dependent on into the Los Angeles Aqueduct and convey it to the city, groundwater, some cities have witnessed under- where much of it is recharged into the underground ground water level declines of up to 200 feet in this basin of the San Fernando ValleyP century A broadly representative Water Manage-

U.S. Advisory Commission on Intergovernmental Relations 47 ment Council created in 1983 found several immi- water challenges in judicial forums. The state is nent and impendinggroundwater problems,ranging divided into seven water divisions, the boundaries of from rapidly accelerating declines in levels to the which accord with major river basins, each with its encroachment of sea water along the Gulf Coast The own division engineer and water court. The water council’s recommendations and conclusions resulted court consists of a district court judge and a court- in enactment of two statutes. The Omnibus Water Bill appointed referee. i61 This set of administrative and of 1985 included the union of surface and groundwa- legal institutions facilitates the determination of ters in a system with ten-year permits issued by the water rights questions. state permit board. The Water Management Districts The Colorado system removed several impedi- Bill of 1985 provided statewide enabling legislation ments to water transfers. Since the mid-196Os, much of for localities to create water management districts the population growth of the front range cities, such with a broad range of powers for assuring water as Denver, Colorado Springs, Aurora, and Pueblo, has supply and inducing conservation?56 been accommodated by purchases of irrigation water Several states are making institutional changes to rights from farmers and the conversion of those allow, or remove impediments to, the transfer of waters from agricultural to urban uses162 waterrights. There is a general trend toward reform of Planning. A majority of the states has either man- state laws to allow greater opportunities for the dated or authorized some form of comprehensive creation of water markets, and to enable local or water resources planning, and most of those states regional authorities toestablish conjunctive manage- have a mandate to engage in continuous planning ment. Such changes”are being established slowly, but and review.163 Some states are exploring regional largely as needed on an ad hoc basis under authority and local water “banking” programs and other of state water 1aws.1’156 A review of state legislative mechanisms for taking greater advantage of under- activity during 1988 and 1989 reveals a pattern of ground water storage capacity. In a banking pro- rejection of proposals to limitwater transfers,approv- gram, water is stored during periods of surplus and al of some bills designed to encourage transfers, and sold during later periods of need.‘& Water banking approval of about half of the measures intended to projects have been implemented on an experimen- authorize state agencies to appropriate groundwater tal basis in California and Idaho.lfi and establish water storage rights.15’ Idaho has recently undertaken the largest river Water Wholesaling. States have used their position as basin adjudication of water rights in the history of the wholesalers as leverage to encourage local initiative in western states,l% involving approximately 185,000 managing water supplies Access to state water supplies claims to the waters of the Snake River watershed. If can be conditioned on efforts to reduce demand and the adjudication results in specific quantified water improve facilities Massachusetts, for example, raised rights, Idaho’s largest water source could be made the wholesale price of water from state-owned reser- part of a water exchange plan. Critical groundwater voirs to local suppliers (as have several states) and areas also have been designated by the state Depart- restricted access in order to induce local entities to focus ment of Water Resources Among the approaches is an more heavily on maximizing the yield and improving attempt to stop excessive withdrawals by specifying a the allocation of local water supplies166 minimum groundwater level within critical areas In A different tactic is employed by New Jersey, 1989, the state legislature enacted a law directing the which mandates that local water suppliers in desig- director of the Department of Water Resources to initiate nated critical groundwater areas either develop their groundwater adjudications to limit withdrawals in own surface water supplies or purchase them from a overdraft areas15g state-owned reservoir at wholesale rates substantial- Water transfers have been used actively in Colo- ly above the cost of additional pumping. Communi- rado, which, in its 1969 Water Rights Determination ties that do not acquire their own surface supplies to and Administration Act, united in the same priority use conjunctively with groundwater, or develop system the appropriative rights to a stream system sufficient conservation measures, may be required and its tributary groundwater? This innovation “to purchase state water whether they use it or not.“16’ encourages conjunctive management in watersheds This provides an incentive to reduce reliance on where surface and groundwaters are interrelated by overtaxed groundwater supplies and begin the con- eliminating the disjuncture between the priority of junctive use of surface water and groundwater, while rights of holders of groundwater pumping permits higher costs provide incentives for conservation and of surface diversion permits. Altering the mix of Institutional Capacity, Districts, and Localities. reliance on groundwater and surface water is made State and local capacities for developing and imple- considerably simpler under such a system. menting innovative strategies for groundwater man- Colorado also has chosen to take advantage of the agement have developed significantly over the last tendency of appropriative permit schemes to resolve 25 years. The “human capital infrastructure” of state

48 U.S. Advisory Commission on Intergovernmental Relations and local governments, the expert professional per- Denver has been treating wastewater into drink- sonnel employed in water resounxs management, ing water quality since 1968. A pilot plant was especially by the states, has grown over that period.‘@’ developed, and a demonstration plant using ozone State and local governments are assuming great- and reverse-osmosis technologies went into opera- er financial responsibility for water projects and tion in 1984. The goal of the project is to use treated resource management initiatives.‘@ Massachusetts water to meet a significant share of the city’s water began operating a grant-in-aid program in 1982, needs by the close of the 1%“’ providing funds on a matching basis to local water Kissimmee, Florida,used to deposit sewage efflu- supply systems. New Jersey began a loan program in ent into a stream feeding Lakes Toho and Okeecho- 1983 to support rehabilitation of water supply facili- bee. The lakes began to show effects from the ties by their local operators.170 Similar financial fast-growing city’s discharges, and the city in turn assistance programs have been established in several outgrew its sewage treatment capacity Kissimmee other states. Utah offers an entire range of water- has built a new treatment plant, which will process supply financing mechanisms, including grants, sewage to a level of quality where some of it can be loans, and credit enhancements.“’ In 1981, Montana used for watering a nearby golf course, some sold for irrigation, and the remainder allowed to recharge established a water development fund to make loans into the groundwater strata. As a result of these and grants for water development projectsJn Many changes, Lake Toho is being returned to its previous of the funding mechanisms involve the privatesector. recreational ~~554.~~ States have experimented with the design of The diversity of state approaches and innovation local special districts and regional administrative in institutional design and groundwater manage- entities. Nebraska, for example, has consolidated ment reflects different physical, economic, social, districts for water conservation, soil conservation, cultural, and political backgrounds and character& and drainage into “natural resource districts” (irriga- tics. Each state (and in many states, each community) tion districts were not included in the consolida- is developing responses to its own “unique set of tion). lTJ Within critical “groundwater control areas” environmental parameters and economic forces.“lD designated by the director of the Department of Water Resources, a natural resources district may promul- gate special rules and regulations governing ground- L ESSONS LEARNED water withdrawals and use. Such regulations may These examples illustrate some of the extensive require installation of flow meters on every well, state and local innovation and experimentation with specify the duty of water for irrigation acreage, and water resource coordination. Some of these initiatives set well spacing requirements.174 Natural resources involve high degrees of cooperation and coordina- districts also regulate, and have in the past sharply tion among several actors,including federal agencies. limited, water transfers. Other initiatives have been unilateral actions of a Florida has established five regional water man- state, a city, or a special district seeking to address a agement districts to conform to the state water resources perceived problem or to improve its water supply regions The districts are governed by boards appointed Approaches togoverningwater resources exhibit by the governor and ~IY responsible for managing tremendous dive+ The examples cited above (and water supply, water consumption, and flood control, others not included) have very little in common, save The districts play a vital role in facilitating and regulat- for one crucial factor: each of the most efficient and ing (or impeding) future water transfers through their equitable management appmaches demonstrates a permit authority,‘” and they also are authorized to levy high sensitivity and close tailoring to the specific ad valorem taxes to finance local water projects physical characteristics of the water resourceslso Statewide water planning and regulation of quality are Groundwater basins differ in the physical characteristics that most affect effective and equitable the responsibilities of the state Department of Envimn- management: rates of recharge, the degree to which mental Regulation. A state water use plan adopted in they are connected with surface water supplies, the 1985 focuses on the relationship between water re- rate and amount of lateral movement within the sources and growth management176 basin, and the susceptibility of the basin to degrada- Localities have tried to couple their need for tion from salt water intrusion or other sources. innovative approaches to waste treatment and dis- Conjunctive management efforts have appeared in posal with their need to assure water supplies. Much groundwaterareas exhibiting nearly the whole range of the literature on water resource management over of these characteristics, and the list of communities the past four decades has advocated reuse of water considering options and developing plans is even and reclamation of wastewater. Local governments more extensive.‘B1 are taking steps in this direction. The use of reclaimed As communities develop groundwater manage- water for replenishment and injection by some ment schemes or seek to improve management, they special districts was noted above. find that they have many models to consider, with

U.S. Advisory Commission on Intergovernmental Relations 49 experiences and rationales that point in different Among the reasons for that progress is the diversity of directions. For example, does conjunctive manage- organizational forms and management arrangement require a comprehensive statewide law? Arizo- ments offered by a multijurisdictional system. Given na and New Mexico have such statutes; California the number and diversity of tasks involved in the and Colorado do not Yet, conjunctive management conjunctive management of groundwater resources, operations have appeared in all four of these states- “Many alternative institutional structures could be for decades in some areas in southern California and considered for the management vehicle.“‘& In addi- since the early 1970s in Colorado. tion, “The extremely diverse hydrologic, geologic, It does not appear that one can plainly declare economic, environmental, legal, political, and social the superiority of any state “model.” Arizona has conditions affecting the occurrence, protection, and chosen to enact and implement statewide legislation; use of ground and surface waters in the United States New Mexico has relied strongly on a “water czar”; suggest that no single structure would be universally and California and Colorado have relied on basin applicable nor politically acceptable.“‘& organizations and adjudications for management The diverse and multifaceted arrangements by There also is a wide diversity of experiences in which groundwater supplies are managed, and creating and empowering regional and local water managed conjunctively with surface water,are not,as management organizations. Florida has made re- may sometimes be supposed, reflections of the weak- gional districts responsible for water management, ness of American federalism, but constitute instead while Nebraska has formed regional districts respon- one of its strengths. A polycentric, multijurisdictional sible for “natural resources.” Mississippi’s new order may in fact be well suited to the management of groundwater laws authorize the creation of broadly complex water systems. empowered water management districts on a geographical scale as small as a pair of municipalities. Notes Half of the states designate critical groundwater ’ National Water Commission, Water Policiesfor tlze Future: FinalReport fo fhe President and fo the Congress offhe United management areas, but within those areas, some States (Port Washington, New York Water Information states regulate water use directly while others create Center, 1973), p. 233. special districts for each designated basin and still ’ Ira G. Clark, Water in New h4exico:A History of Its hfanage- others leave it to local residents to form a special merit and Use (Albuquerque: University of New Mexico district In Washington, groundwater management Press, 1988), p. xi. 3. Sidney?: Harding, Water in California development in designated critical areas can be (Palo Alto: N-P Publications, 1960), p. 58. triggered either by the state or by local residentsJa 3 Sidney T Harding, Wafer in California (Palo Alto: N-P Several years ago, the National Water Commis- Publications, 1960), p. 58. sion found that groundwater management organiza- 4 California Department of Water Resources, California’s tion by the states could be grouped into two broad Ground Water. Bulletin 118 (Sacramento, 1975), p. 121; Za- organizational approaches. One was state designa- chary Smith, “Rewriting California Groundwater Law: tion and regulation of critical groundwatec The other Past Attempts and Prerequisites to Reform,” California Western law Review 20 (Winter 1984): 234; Susan M. Trag- category of organization was the special water district er, “Emerging Forums for Groundwater Dispute Resolu- encompassing the groundwater basin. After review- tion: A Glimpse at the Second Generation of Groundwa- ing experiences with these organizational alterna- ter Issues and How Agencies WorkTowards Resolution,” tives, the commission decided to express “no strong Pacific Law journal 20 (October 1988): 42. preference for one form of organization over the 5 Stephen J. Burges and Reza Marnoon, A Systemafic Ex- other;” observing instead that “the form of organiza- amination of Issues in Conjunctive hlanagement of Ground tion should depend upon the problems encoun- and Surface Wafers. Water Resources Information System Technical Bulletin 7 (Olympia: Washington Department tered - hydrological, institutional,and legal.“lB Since of Ecology, 1975), p. 1. the commission completed its work in 1973, the range of organizational forms and institutional arrange- ’ Ibid. ments for groundwater management has expanded ’ Harding, pp. 116-117. even further. s Erwin Cooper, Aqueduct Empire (Glendale, California; When innovation occurs in several locations in Arthur H. Clark Co., 1968), p. 137. several organizational guises, the course of progress 9 David L. Jaquette, Ejkient Water Use in California: Con- may not appear to be very orderly. It may even appear junctive Management of Ground and Surface Reservoirs at times to be chaotic. Nevertheless, in the words of Ira (Santa Monica: RAND Corporation, 1978), p. 2. Clark, “Despite its erratic and unpredictable course, lo Jurgen Schmandt,Ernest Smerdon, and Judith Clarkson, there has been progress. . . . Far away as the ideal State Wafer Policies (New York: Praeger Publishers, 1988), master water plan might be . . . there has been a p. 144. decided trend toward more cooperative and coordi- I1 Burges and Marnoon, p, 33. nated handling of the nation’s water problems.“184 l2 Cooper, p. 137.

50 U.S. Advisory Commission on Intergovernmental Relations 13Les K. Lampe, “Recharge Saves Water for a junctively with surface water from local and im- Not-so-Rainy Day,” American City and County 102 (June ported sources; and (4) protection and planned 1987): 40. maintenance of ground water quality. r4 Kyle Schiiing et al., 131e Nation’s Public Works: Report on zs CaIifornia Department of Water Resources, Bulletin 118, Water Resources (Washington, DC: National Council on p, 129. Public Works Improvement, 1987), p. 176. 29 Neil S. Grigg, “Appendix: Groundwater Systems,” in l5 Ibid. Shilling et at., p. B-2. 3o For example, California Department of Water Re- l6 Burges and Marnoon, p. 34; Cooper, p. 137. sources, Bulletin 118, p, 124. I7 Thii distinction between Xconjunctive use” and #con- 31 Peters, “Groundwater Management,” p. 190. junctive management” derives from the work of William Lord at the University of Arizona’s Water Resources Re- 32 California Department of Water Resources Bulletin 118, search Center. pp. 119-124. l8 Stetson, Strauss and DresseIhaus, Compendium of Report ss Smith, “Rewriting Groundwater Law,” p. 234. on a Supplemental Writer Supply@ UpperSan Gabriel Vally 34 See, for example, John E Mann, Jr., “Concepts in Ground Municipal Water District (Los Angeles, 1%2), p. VI-l. Water Management,” Journnl of the Americnrr Water Works l9 Burges and Marnoon, pp. l-2. Association 60 (December 1968): 1336-1344; also, its application to the conjunctive management of the San Fer- 20 Lampe, p. 40. nando Valley groundwater basin in William Blomquist, 21 Jaquette, p, 2. 7he Perfirnmnce of Institutions for Groundwater Manage- ment, Volume 6: 7he San Fernando VIlly (Bloomington: In- 22 Burges and Marnoon, p. 32. diana University, Workshop in Political Theory and 23 Helen Joyce peters, “Groundwater Management,” Water Policy Analysis, 1988). Resources Bulletin 8 (February 1972): 190. She observes ss California Department of Water Resources, Bulletin 118, that artificial recharge to conserve waters that would p. 124;see&oBurgesandMarnoon, p.4: “Operationun- otherwise have wasted began as early as 1895 in South- der a traditional safe yield approach might incur large ern California. opportunity costs because the wa ter resources cannot be z4 Lampe, p. 40. put to optimal or near optimal use.* zs See, for example, California Department of Water Re- ss California Department of Water Resources, Bulletin 118, sources, Bulletin 118, p. 126. See also, among others, Mi- p. 121. chael MalIery, “Groundwater: A Call for a Comprehen- sr Conjunctive use groundwater basin management plans sive Management program,” Pacific Law Journal 14 (July “should include control not only over groundwater 1983): 1279-1307; Ian Carruthers and Roy Stoner, Eco- pumping, but aho over the storage space of an aquifer.” nomic Aspects and Policy Issues in Groundwater Deoelop- Charles Phelps et al., Efictent Water Use in California: Ex- merit, Staff Working Paper 496 (Washington, DC: The ecr&iue Summary (Santa Monica: RAND Corporation, World Bank, 1981). 1978), p. 26. 26 These arguments are reviewed in Advisory Commission 38 Lampe, p. 46. on Intergovernmental Relations (ACIR), 77te Orgunizu- ss Such concerns are among the “second generation” of tion of Local PubIic Economies and Metropolitan Orguniza- groundwater issues identified in Trager. Louis Case (Washington, DC, 1987 and 1988). tion: 7be St. ‘sIndeed, this aspect of groundwater management has r’ Examples of such definitions (of “groundwater manage- been identified by at least one observer as more diificuh ment” generally), are found in Harvey 0. Banks, “Man- to resolve successfuIIy than the supposedly intractable agement of Interstate Aquifer Systems,“ASCEloumaloJ common-pool or Prisoner’s Dilemma problems that ac- Water Resources Planning and Management 107 (October company groundwater resources. Susan Christopher 1981): 565; and California Department of Water Re- Nunn,‘?7tePoliticul Economyoflnstitutional Innovation: Co- sources, Ground Water Basins in Culifirnia. Bulletin 118-80 alitions and Strategy in the Development of Groundwuter (Sacramento, 1980). The definition given by Banks is: Law. Ph.D. Dissertation, University of Wisconsin, 1986. Ground-water resources management involves 4* See aho Lampe, p. 40; David Jaquette and Nancy Moore, the protection, development and use of the E&knt Water Use in California: Groundwater Use and ground-water resources of the particular aquifer Management (Santa Monica: RAND Corporation, 1978), system concerned, generally in conjunction with p, 31. available surface water resources possible indud- &The importance of adaptability and error correction, ing reclaimed water, in the most effective manner and the difference between them, derives from the work to meet water resource development and use ob- of Vincent Ostrom of the Workshop in Political Theory jectives as those objectives are defined and rede- and policy Analysis at Indiana University. fined with changes over time. a Banks, p. 565. The definition given in Bulletin 118-80 is: yL WiIIiam Reedy, Water for the Valley of the Sun,” ASCE Ground water basin management includes Journal of Water Resources Planning and Management 106 planneduse of the ground water basin yield,stor- (July 1980): 477. age space, transmission capability, and water in storage. It includes (1) protection of natural re- e These observations are made by NUM, p. 20. charge and use of artificial recharge; (2) planned 46 For example, “land devoted to cotton production alone variation in amount and location of pumping increased from 282,ooO acres in 1948 to 678,000 acres in over time; (3) use of ground water storage con- 1952. For the most part, the water necessary to support

U.S. Advisory Commission on Intergovernmental Relations 51 this increased production came from the ground.” Za- Public Administration, University of Southern CaIifor- chary Smith, me policy Environment,” in Zachary nia, 1967, pp. 105-106. Smith, ed., Water and the Flcture of the Southwest (AIbu- R Trager, p. 53. querque: University of New Mexico Press, 1989), p. 10. 78 MaUery, p. 1295. 47 Philip Briggs, “Ground-Water Management in Arizona,” ]ournal of Water Resources Planning and Management 109 79 There are many sources for such criticisms. For a couple (July 1983): 195; and John Leshy and James Belanger, “Ari- of excellent examples, see Keith Knapp and H.J. Vaux, zonaLaw:WhereGroundandSurfaceWaterMeet,’Ari- “Barriers to Effective Grour.d-Water Management: The zona State Law Journal 20 (FaU 1988): 691. California Case,” Ground Water 20 (January-February 1982): 61-66; and MaIIery, pp. 1279-1307. 48 Wesley Steiner, “Public Water Policy in Arizona,” State Government 55 (FaII 1982): 133. 8o Knapp and Vaux, p. 61. 49 Briggs, p. 197. 81 MaUery, p. 1286. 5o Reedy, p. 488. az Ibid., p. 1281; Knapp and Vaux, p. 61. 51 Ibid., p. 489. 83 Ibid. hasis added). 52 Steiner, p. 133. 04 Ibid., p. 1298 (emp 85 Knapp and Vaux, p. 61. 53 Scott Hansen and Floyd Marsh, “Arizona Ground-Water Reform: Innovations in State Water Policy,” Ground Wa- 86 Albert J. Lipson, Efficient Wafer Use ~JJ Cdif~~~li~ The Euo- ter 20 (January-February 1982): 69. htion of Groundwater Management in Sorrfhern Caflforrria RAND 54 Ibid. (Santa Monica: Corporation, 1978), p. 1. s7 Elizabeth Rolph, Government Allocation of Property Rights: 56 These cases, Bristor v. Cheatum, are known as gristor I” and “B&or II” in Arizona law. WhyandFfow (Santa Monica: RAND Corporation, 1982), p. 16. 56 Hansen and Marsh, p. 69. sa Lipson, p. 18. ?’ Ibid. 89 Helen J. Peters, “Ground Water Management in CaIifor- ss Tributes to Governor Babbitt’sleadershipinbringingto- nia.” Presented at the American Society of Civil Engi- gether the 1980 Arizona law are to be found in virtually neers Conference, Las Vegas, April 1982, p. 11. every account of the process. For details, see Hansen and 9o peters, “Groundwater Management in California,” p. 3 Marsh, p. 70; Kathleen Ferris, “Arizona’s Groundwater (emphasis added). Code: Strength in Compromise,” Journal of the American Water Works Association (October 1986): 79-84; Leshy and 91 Phelps et al., p. 2. Belanger; and Steiner. 9z Lipson, p. 21. 59 Steiner, p. 133. 93 UINTEX Report to the Los Angeles District Office of the @ Schmandt et al., p. 37. U.S. Army Corps of Engineers on the Los Angeles County Drainage Area, 1985, p. E-39. 61 Hanzen and Marsh, p. 70. 941nstitute of public Administration, Special Districts and g Ibid., pp. 70-71. Public Authorities in Public Works Provision (Washington, 63 Ibid., p. 70; Ixshy and Belanger, p. 707. DC: National Council on public Works Improvement, 1987), pp. 66-67. Unpublished. 64 National Research Council, Committee on Ground Wa- ter Quality Protection, Ground Water Quality Protection: % MaIIery, p. 1291. State and Local Strategies (Washington, DC: National % Lipson, p. 9. Academy Press, 1986), p. 83. m Phelps et al., p. 21. 65 Steiner, p. 134. 98 The provisio n -p reduction distinction may be found in 66 James Corbridge, ?An Overview of the Special Water ACIR, The Organization of Local Public Economies. District Workshop,” in James Corbridge, ed., Special Wa- 99 More extensive descriptions of the geology and history ter Districts: Challenge@ the Future (Boulder: NaturaIRe- sources Law Center, 1983), p. 4. of this area can be found in several sources, including Wiiam Blomquist, ‘The PerJormance of Institutions for 67 Briggs, p. 199. Groundwater Management, Volume2: The West Coast Basin, 68 Ibid., p. 201. and Volume 3: 7’he Central Basin (Bloomington: Indiana University, Workshop in Political Theory and Policy @ Leshy and Belanger, p. 713. Analysis, 1988). 70 Ibid., p. 724. rM Jaquette and Moore, p. 37. n Ibid. lo1 Harold Rubin, ‘IIre Solano Water Story (VacaviIIe, Califor- n “Legislative Update,” Water Strategist 3 (April 1989): 15. nia: Solano Irrigation District, 1988). 73 Steiner, p. 135. lo2 California Department of Water Resources, RecoIlI- mended Water h4anagement Plan for SO117110 Colrrrf!! Flood 74 Briggs, p. 201. Controt and Water Conservation Disf-rict (Sacrament@, 75 Hansen and Marsh, p. 71. 1982), p. II-l. 76 Alfred W. Jorgensen,A New Approach to Solving Water Dis- rM Association of California Water Agencies, iiCIZ!4’s putes: The rkrg Beach Case, Master’s Degree Thesis in 7%Year History (Sacramento, 1985), p. 18.

52 U.S. Advisory Commission on Intergovernmental Relations *04 John S. Murk Engineers, Final Local Water Management 126 Smith, “Federal Intervention in the Management of Alternatives: Newberry Groundwater Basin (Victorville, Groundwater Resources, pp. 157-158. See also Larry Fea- California: Mojave Water Agency, 1984), p. m-14. zell, “Interstate Water Agencies,” ne Book of the Strifes. 1986-87 Edition (Lexington, Kentucky: Council of State lo5 Nunn, p. 252. Governments, 1986), pp. 420-423. lo6 Ibid., pp, 14-16. lz7 Ibid, and National Water Commission, p. 245, both of lo7 Ibid., pp, 252-253. which recommend interstate compacts or other forms of interstate agreements, such as administrative agree- lo8 Micha Gisser, “Groundwater: Focusing on the Real Is- ments or reciprocal legislation. su&’ Journal of Political Economy 91 (December 1983): na National Water Commission, p, 245. *09 National Water Commission, p. 232. yg Smith, “Federal Intervention in the Management of Groundwater Resources,” p. 158. *lo Gisser, p. 1012. 130 Gisser, p. 1012. 11* Ibid., p. 1013. 13* Ibid. 112 Ibid., p. 1014. 1p Banks, p. 564. *I3 Ibid., p. 1024. 133 David Noonan, Myron Rosenberg, and Duncan Wood, 114 Ibid pp. 1024-lU25; and Douglas Grant, me Complexi- “Constraints to Managing Interstate Aquifer,” Journal of ties 6f Managing Hydrologically Connected Surface Wa- M’atPrResolrrcePlalrrtinSalld Management 110 (April 1984): ter and Groundwater Under the Appropriation Doc- 191. trine,” Land and Water Law Review 22 (1987): 88-89. 134 Ibid., pp. 194-198. lfi City of Albuquerque v. Reynolds, 379 I?226 73 (1%3). lzs Ibid., p. 202. ‘16 John S. Murk Engineers, p. m-14. 1x Ibid., pp. 198 and 204. “’ Nunn, p. 253. 13’ Ibid., p. 199. lls Ibid. lss See, for example, Nancy Humphrey and Christopher llg Gisser, p, 1014. Walker, Innovative State Approaches to Community Water Supply Problems Washington, DC: The UrbanInstitute, lrn Grant, p. 89. 1985), p. vi. For a discussion of the “coordination costs” lzl Cache Lal’oudre Water Users Associationv. Glacier View concept, see ACIR, The Organization of Local Pllblic Econo- Meadows, 550 l?2d 288 (1976). mies, p. 11. I22 Clark, p. xiv. 139 James H. Krieger and Harvey 0. Banks, “Ground Water Basin Management,” California Law Review 50 (Winter l” National Water Commission, p. 245; Banks, p. 564. 1%2): 57. ‘%Smith, “Federal Intervention in the Management of 144 ThomasStetson,“MainSanGabrielBasinGroundWater Groundwater Resources,” p. 153. Management.“Presentedat the82ndAnnualMeetingof 125 Morton Bittinger, “Survey of Interstate and Internation- the Cordieran Section of the Geological Survey of al Aquifer Problems,” Ground Water 10 (March-April America. In Prem K. Saint, ed., Hydrogeolosy of Sou them 1972): 44-54, identified 198 interstate and/or internation- California: VoIume and Guidebook (Los Angeles: Geological al aquifers as actual or potential problem areas, of which Society of America, 1986), p. 9. almost 60 were described as “major.” This study and its 14* Ibid. results were still being cited in the 1980s as evidence of 142 Wade Miller Associates, the extent and degree of severity of interstate ground- 7he Nation’s Public Works: Report water management problems (see, for example, Banks; on Water Supply (Washington, DC: National Council on Public Works Improvement, 1987), p. 48. and Smith, “Federal Intervention in the Management of Groundwater Resources”). lrw Ibid.; Frank Welsh, How to Create a Water Crisis (Boulder: Reliance on this survey should be kept in perspec- Johnson Books, 1985), p. 35; and James Crews, “Regional tive, however, if not forgone altogether, in making such Versus Local Water Supply Planning” Journal of Water characterizations. Among its difficulties are: (a) aquifer Resources Planning and Management 109 (April 1983): problems were classified as to degree of severity by the 179-185. most severe ranking given to that problem by any ob- 144 Crews, p, 180. server (e.g., a problem was classified as “major” if anyone responding to the survey described it as “major “), l* Welsh, p. 35; Wade Miller Associates, p. 116. thus biasing the results toward the most severe charac- 146 Ibid., p. 48. terizations, and (b) almost half of the problems classified as “major” were described as such by one anonymous lw Welsh, p. 35. observer from a university, who happened to rank as 14n crews, p. 185. “major” every interstate or international problem he or 14g There have been numerous descriptions of the Los An- she identified. Rather than assuming that interstate and international groundwater management problems geles-Owens Valley-Mono Lake water disputes, some of which are summarized in Blomquist, must be even worse now than they were then, analysts The San Fernando and policymakers should recognize that problems may Valley. not have been that bad then, and that no better survey 150 “Coming to Terms: A Proposed Agreement for the has been done since. Owens Valley Dispute,” Water Strategist 3 @ly 1989).

U.S. Advisory Commission on Intergovernmental Relations 53 tsl Kevin Roderick, Water Rights Pact with L.A. Wins Ap- 164 Gary Weatherford et al., Acquiring Wafer/or Energy: btsfi- proval in lnyo County,” Los Angeles 7imes, August 16, fufionaf Aspects (Littleton, Colorado: Water Resources 1989. Publications, 1982), p. 14. 152 Virginia Ellis, “L.A. Backs Legislative Plan to Cut Use of 165 Early discussions of this planning appear in California Mono Water,” Los Angeles ‘Emes, August 11, 1989, and Department of Water Resources, Bulletin 118, pp. “MWD May Back Bill on Mono Lake Water Dispute,” Los 127-128. See also Weatherford et al.; and California De- Angeles Emes, August 17,1989. partment of Water Resources, California Wafer: Looking fo theFuture. Bulletin 160-87 (Sacramento, 1987), pp. 47-48. 153 “Coming to Terms,” p. 13. 166 Humphrey and Walker, p. 36. ls4 Schmandt et al., p. 22. 16’ Ibid., p. 67. lss Marvin Bond, Jimmy Palmer, and Charles Branch, “Re- *68 Schilling et al., pp. 133-134; Humphrey and Walker, pp. cent Experiences with Water Legislation in Mississippi,” 9-10. Public Administration Survey 35 (Autumn 1987-Winter 169 Schiimg et al., pp. x-xi; Schmandt et al., p. 12. 1988): 1-5. 170 Humphrey and Walker, pp. 23-35. ls6 Schilling et al., p. 176. ln Ibid., p. 84 15’ “Annual Legislative Review,” W&r Strategist 2 (October 172 Schilling et al., p. 134. 1988) and 3 (October 1989). lrs Corbridge, p. 9. lss Water Supply,” From fhe Sfafe CapifaZs 43 (January 1989): 174 See, for example, the description of the activities of the 4. Upper Republican Natural Resources District in Spor- ls9 “Annual Legislative Review,” Wafer Strategist 3 (October hase v. Nebraska, 458 U.S. 941(1982), 955. 1989). 175 Schmandt et al., p. 88. 160 Morton Bittinger, “Ground-Water Surface-Water Con- 176 Ibid., pp. 90-91. flicts,” ASCE journal of Wafer Resources Planning and Man- lrr Wade Miller Associates, p. 9. ;lF7;f 106 (July 1980): 473; Leshy and Belanger, pp. - . 178 Wiiam S. Foster, Wastewater Reuse Protects Kissim- mee Water Resources,” American City and Counfy 102 161 E Lorenz Sutherland and John Knapp, “The Impacts of (June 1987): 46. Limited Water: A Colorado Case Study,” Journal of Soil I79 Schmandt et al., p. 12. and Wafer Conservation 43 (July-August 1988): 295. 180 Jacque Emel, “Effectiveness andEquity of Groundwater 16z Ibid., pp. 295-297. It is important not to overlook the fact Management Methods in the Western United States.” that, in arid regions, the transfer of water away fromuse Working Paper 3 (Tempe: Arizona State University, Cen- on agricultural land can, if abandonment of the agricul- ter for Environmental Studies, 1984), p. 33. tural land ensues, result in considerable soil erosion effects. This has occurred in sections of the Arkansas River la1 Lampe, p. 40. Valley in southeastern Colorado. In response, Colorado lsz Humphrey and Walker, p. 68. water courts have begun conditioning their approval of lss National Water Commission, p. 234. water rights transfers on commitments to the revegeta- tion of the land from which the water rights are being Is4 Clark, p. 422. transferred. a5 Banks, p. 575. 163 Schiiing et al., pp. ix and 133. 186 Ibid.

54 U.S. Advisory Commission on Intergovernmental Relations Chapter 4 Understanding the Organization of Water Resource Management

In previous chapters we have pointed out that evaluation of the performance of public officials and there are different types of water management governmental structures is left to citizens problems throughout the United States, several ele- Observers who despair of the organization of ments to effective groundwater management, several gmundwater management may simply lack an orga- types of institutional arrangements for managing nizing concept with which to look at it Instead of water resources (including managing groundwater measuring current arrangements against ideal types, supplies conjunctively with surface water), and a “What is needed is the ability to compare and contrast wide diversity of interjurisdictional arrangements very diverse sets of water management instituti~ns”~ lb being used. Conjunctive management is organized help understand the roles and relationships of the neither as an ideal legal-rational centralized adminis- diverse organizations involved in gmundwater man- tration nor as a perfectly competitive market agement, we use the concept of a complex and When analysts begin with a conceptual ideal, regulated water economy The idea of a complex water they are bound to find actual patterns of intergovern- economy, composed of providers, producers, importers, mental and public-private relationships to be defi- wholesalers, retailers, and regulators can help to orga- cient If, for example, the ideal is the perfectly nize observation of the intergovernmental relations of competitive market, analysts finding governmental groundwater management so that the kinds of coon%- involvement of any sort in decisionmaking about nation that do occur can be seen resource use will describe the situation as “politi- cized” and therefore “inefficient” Other analysts pmceed “from a belief that a system of government A COMPLEX WATER ECONOMY composed of numerous, independent, specialized units The largest element in the complex water economy of government is necessarily fragmented and ineffec- is the water supply industry, which consists of tive,“’ in which case their descriptions of multiple actors publicly and privately owned systems of varying in a noncentralized system will be followed by a organizational forms and sizes. It is “composed of a prescription for centralization of authority. very large number of highly independent federal, But there are additional possibilities for analysis state, and local governmental agencies operating side of intergovernmental relations. There is a tradition of by side with large numbers of private utilitycompan- thought based on the idea that an understanding of ies, co-operative associations, and individual propri- existing arrangements is an important prerequisite to etorships,q6 and “characterized by a long history of prescriptions for reform. That view, which informs self-sufficiency and local government control over recent work on metropolitan area governmental management and finances”’ According to a recent organization,2suggests that analysts “begin to search description of intergovernmental relations in water for the nature of the order which exists in the complex of resource management: relationships among governmental units and abandon These patterns of intergovernmental wla- he assumption that all of these relationships are unique tions, in turn,take on the characteristics of in- x randomn3 Description of “the nature of the order dustry structures. Different agencies ranging &ich exists” and “an analysis of how the system from local suburban water districts to munic- ~orks”~ can be followed by discussion of shortcomings ipal water departments, for example, may md recommendations for improvements The ultimate function as retail agencies serving the ulti-

U.S. Advisory Commission on Intergovernmental Relations 55 mate consumer of water services. But such ment Among the larger community water systems, water distributors may be supplied by inter- more autonomous organizational forms are found, mediate water agencies such as county water including special districts, water authorities, and authorities or metropolitan water districts state-chartered public corporation~~~ that operate large-scale diversion works, Privately owned community water systems also aqueducts, and reservoirs to produce water vary in organization. They include mutual compan- for domestic, urban, and industrial uses. ies owned by their customers, private proprietor- These agencies in turn work with the ships, and investor-owned utilities. The larger the large-scale water development agencies of population served by a privately owned system, the the state and Federal governments Together more likely it is to be an investor-owned utility? their coordinated efforts might be viewed as Most community Water systems are small, serv- a water industry.. . ? ing fewer than 3,000 people each. The number of systems classified as “very large” (i.e., serving 100,000 Other recent reports have compiled and presented or more people) is 279, about 0.5 percent of all the detailed information about the industry that provides community water systems. Thus, almost two-thirds a picture of the composition and organization of (63.9 percent) of the nation’s community water sys- water supply provision and production.g tems serve a combined total of about 3 percent of the There are more than 200,000 water systems population, while 36 percent of the systems serve serving the public. Of these, 58,530 (about 29 percent) the other 97 percent of the population. The largest are community water systems that serve primarily 0.5 percent of the systems serve over 43 percent of the population.17 Combining the number of “large” residential areas with a population of some 219 (10,00@100,000 people) and “very large” systems, the million. The other 71 percent, or 144,800 public water majority of the nation’s population is served by systems, are noncommunity systems that serve pri- approximately 3poO community water systems, which ‘marily nonresident or transient populations of 36 in turn vary by supply source, form of ownership, million persons (parks and campgrounds, resort form of organization, and size. areas, hotels and restaurants, etc.)‘O The existence of more than 50,000 community The water supply industry uses both surface and water systems, and the involvement of more than groundwater sources. As would be expected, reliance 25,000 local governments in one aspect or another of on these sources differs according to theircharacteris- supply’* may still seem difficult to understand, espe- tics and geographic distribution. Noncommunity water systems are more often reliant on groundwater cially if the observer presumes that water supply (96 percent of them use underground supplies)” involves only one type of activity But the hundreds of because these systems generally depend on water thousands of water supply organizations do not all that is available at or very near the point of use and do perform the same function. not make large-scale investments in impoundment Within the complex water economy, there and transmission facilities. Groundwater also is the exists an important distinction between the provi- primary or only source of water for 80 percent of sion and the production of a service or commodity.‘9 community water systems. These tend to be smaller Provision involves the decisions concerning the systems that serve approximately 30 percent of the amount and quality that will be provided, thecosts, population that uses community water systems. The and how the costs will be distributed among other 20 percent of community water systems rely on users-in sum, the decisions translating prefer- surface water supplies and tend to be larger, serving ences for the service or commodity into demand. 70 percent of the population.” Production involves the decisions for acquiring Ownership, organization, and size of communi- and mixing production inputs in order to generate ty water systems vary greatly There are 26,424 production outputs (services or commodities). publicly owned systems (45 percent). Of these, rough- Provision and production decisions may be made ly 15,000 were municipalities directly providing and executed by the same or different organizations. water, according to the 1982 Census of Govern- An organization may provide services or commodi- ments.13 Other publicly owned systems were public ties that it does not produce. For example, a general authorities and special districts. There are also about 15,740 privately owned systems serving municipal local government or a special district may provide communities, plus systems owned by and operated water to residents by acquiring all or part of the water for small communities such as homeowners’ associ- from a supply that is produced by some other entity ations, mobile home parks, and the like.‘4 The municipal water districts in the Los Angeles Publicly owned community water systems in- County case described in Chapter 3 are examples of clude local government water departments as well as provider organizations purchasing water from much autonomous and semi-autonomous providers Among larger producers, such as the metropolitan water smaller systems, the mom frequentiy encountered district, the California Department of Water Re- organizational form is the local water supply depart- sources, and the county sanitation districts.

56 U.S. Advisory Commission on Intergovernmental Relations The complex water economy may involve thou- that is neither alien to many sectors of the U.S. economy sands, even hundreds of thousands, of organizations nor necessarily inappropriate to the water sector and relationships, yet not be beyond comprehension. Similarly,differententitiesmayperformdiffer- Some organizations are providers of water, others are ent regulatory functions. Overseeing the costs and producers of water supply, others may be both, and the adequacy of water supply calls for different there are many provider-producer relationships. information and expertise than overseeing and Overlaid on the provider-producer distinction is regulating water quality. Some communities may the difference in an economy between importers, choose one regulatory organization; others may wholesalers, and retailers. These functional differen- choose more than one. tiations and relationships are not surprising when When the organizing concept of a complex water found in other sectors of the economy, and should not economy, composed of providers and producers, be surprising in the water economy Some organiza- importers, wholesalers, retailers, and regulators, is tions import supplies to areas where water is in applied to the management of water supplies, pat- sufficient demand. Others function as wholesalers, terns of organizational development and interor- providing water supplies to more than one retail ganizational relationships begin to emerge. It is, in client organization. The retailers distribute water fact, an organizing concept without which much of directly to users. Some wholesalers may be producers the activity involved in the provision and production as well as providers; others may be providers only, of all kinds of services and commodities would be purchasing (for example) imported water and distrib nearly incomprehensible. uting it among retailers. Similarly, water retailers may The complex water economy concept, in particu- directly produce the supplies they sell, or purchase lar,may help us understand the apparent paradox of a water from wholesalers and deliver it to residents, or large number of small water suppliers in an industry some mix of these methods. characterized by many observers as involving large Regulatory functions (to oversee the operation economies of scale. Since most of the larger commu- of water suppliers and ensure safety to users) may nity systems have relied primarily on surface water, be performed by other organizations. In fact, many analyses have been based, understandably, on throughout various sectors of the United States the scale economies present in surface water supply economy,theseparation of regulation fromproduc- The capture, impoundment, and distribution of sur- tion and provision has been the arrangement of face water involve large capital investments in choice-quasi-independent and independent reg- physical facilities (distribution systems, and dams ulatory agencies and commissions, and local, state, and reservoirs in many cases), facilities to exploit and federal legislative bodies and committees opportunities for low-cost hydroelectric power gen- typically review and mandate the safety of services eration, and facilities to ensure the protection of and commodities. The entire concept of the “regu- aquatic life (e.g., fish ladders). lated utility” is based on the idea of the separation Some local communities and private water of regulation from production and provision. suppliers have made investments in developing If one looks at “water resource managemenr as surface water supplies, including the construction one task, then the number and degree of specializa- and operation of water projects. But many other tion of provision units and regulators is likely to surface water projects have required the scale of a appear as “duplication” and “fragmentation,” with watershed, which contains several communities In several units “each dealing with a part of fhe prob some cases, regional special districts have been Ierr~“~ On the other hand, if one acknowledges that created to finance and build surface water projects, to “water resource manageme&’ consists of several obtain funds from several communities that stood to functional aspects, then one may anticipate some benefit,and to organize and implement the project on functional differentiation in its organization. the appropriate scale. In several cases, states have Of the special local governments identified by designed and constructed surface water projects. Still the 1982 Census of Governments as engaged in one or other large-scale surface water projects have been more aspects of “water resource management,” 85 financed and built by the federal government percent were single-function districts?1 These dis- The participation of the United States has usually tricts engaged variously in the provision of ports, been justified on one or both of two grounds: first, that drainage, irrigation, flood control, water and land the project, while needed for a particular community reclamation, wastewater treatment and sewage dis- or region, was beyond the financial resources of local, posal, and water supply. At one level of analysis, these regional, or statewide public and private entities, and functions are all part of 44ater msource management”; second, that benefits from economic development or at another level, they are distinct Having different avoidance of natural disaster would inure to the functions performed by different specialists is a notion nation as a whole.=The second rationale in particular

U.S. Advisory Commission on Intergovernmental Relations 57 supported the passage of the Reclantafion Act of 1902 operates, and this form of organization carries possibili- and the creation of the Bureau of Reclamation and the ties for efficient and equitable resource management Reclamation Fund to finance and build water projects This form of organization also provides oppor- in the western states. tunities for adapting to change. There is a consen- It is typically with attention to this one aspect of sus in the literature that the day of the large-scale water supply-construction of a surface water project surface water resource development project is -that observers have noted economies of scale. either passing or gone. The emphasis now is, and is Surface water projects with different scales of produc- likely to remain, on improved management of tion and of benefits have been undertaken by differ- existing water supplies rather than increasing ent producers, and several of the largest projects have yields through structural development?5 been undertaken by the federal government If the focus of water management shifts to the However, construction and operation of a surface demand side of the supply equation, then an economy water project are two different functions. Throughout in which relatively large numbers of smaller local the western states, for example, while Bureau of agencies compete for resources may have benefits Reclamation projects have generated more surface that are yet to be fully realized. The efficient and water storage capacity than U.S. Army Corps of equitable allocation of any scarce resource requires Engineers projects, the Corps has developed its (indeed, presumes) the availability of full informa- expertise primarily in the operation of projects for tion about the preferences of potential claimants. flood control and, in several cases, the Corps may use While a perfectly competitive market in water sup- bureau projects for the storage and release of flood plies does not exist,some benefits of competition may flows to minimize flood damagesa Furthermore, the be gained if users are required to reveal their prefer- bureau has turned over the operation of its projects to ences and confront more nearly the real value of irrigation districts or other special local governments those supplies, rather than seeking to acquire abun- that represent the users,~ as is the case with the dant water for local use by persuading a larger Solano Project described in Chapter 3. jurisdiction to construct a water project for their The use of project water is also subject to benefit Pursuing these benefits through limited decisionmaking that may be appropriately orga- interlocal competition has been advocated for more nized on a scale other than that of the construction than 30 years,% but their realization depends on the of the project,oreven itsoperation. Water provision existence of multiple water-users’ enterprises. decisions (how much water of what quality to Another consequence of the shift away from acquire at what times and for what cost) depend on surface water development projects to meet future a number of factors that tend to be local. needs is the increasing reliance on groundwater Therefore, a number of communities of interest supplies. Groundwater supplies tend to be relied on may exist within the service area of a large-scale more often by smaller community systems and by surface water project If they can organizerepresenta- noncommunity systems Groundwater development tive collective entities-associations, municipalities, has resulted in the proliferation of special water districts special water districts-that can bargain and contract that overlie basins Irrigation districts and conservation with a large-scale producer or operator, the water districts have been especially plentifuL project operator may wholesale water to communi- As more surface water supplies were developed, ties needing different amounts at different times, and and then as the emphasis shifted from development the communities may function as retailers or users’ to management, many of these groundwater supply cooperatives. These arrangements can allow for organizations began to take on conjunctive manage- greater flexibility and efficiency in water pricing. ment functions. Groundwater districts and associ- Project water prices may be varied according to use ations have contracted with surface water project patterns, so that demands for peak-period uses may operators for supplies, acquired authority to recharge be priced higher, and off-peak surplus deliveries for underground water storage capacity with surplus storage may be priced lowet Organizations can then surface flows, and in some cases acquired authority to make decisions about use and delivery in response to tax or limit groundwater withdrawals?’ the incentives signaled by pricing practices. Several watersheds contain multiple groundwa- This concept of competition among entities ter basins. If jurisdictions representing users are representing local water users runs counter to organi- empowered to engage in conjunctive management zational integration models, and will appear to some and to contract with surface water suppliers, then analysts to be “fragmentation” of decisionmaking, opportunities may exist to reap benefits from both with “local parochial interests” being pursued at the competition and conjunctive management. Competi- sacrifice of “the general good” of the watershed. tion and bargaining can result in pricing practices Nonetheless, this is how the complex water economy that more nearly reflect the value of water to users

58 U.S. Advisory Commission on Intergovernmental Relations This not only improves the efficiency of allocation by different powers, and 100 special acts, each of which directing water toward its higher valued uses but also creates a single district for a specified area.= Califor- induces water users to conserve, reducing the need nia contains approximately 1,000 of all types of local for additional supplies. At the same time,conjunctive water districts engaged in all types of functions33 In management exploits the advantages of groundwa- Arizona, special water districts are created by general ter basins more fully. This combination of effects can law or special legislation. Arizona provides for four mean that surface water supplies are directed toward types of special water districts in addition to those for higher valued uses while groundwater basins are flood control and soil conservation.34 New Mexico also more often employed for their higher valued provides for different types of special water districts, uses as reliable, low-cost reservoirs such as conservancy districts, and some districts are In some groundwater basins, where existing authorized to choose among alternative methods for enterprises and agencies lacked the power or the voting and representation and for generating reve- jurisdictional boundaries (or both) to engage in nue.% Nebraska and Florida have added the creation conjunctive management,new agencies have been of regional “super districts,” which are multipurpose created to provide replenishment and water stor- agencies under the supervision of the state.% age services while spreading the costs among all The Congress also contributed to the growth in users in proportion to the benefits obtained. Special the number of special water districts, designating them water districts have been an especially active part as the contacts and contractors for federal water projects of the complex water economy. and programs during the first three decades of this century? In 1926, the Congress amended the 1902 Reclamation Act to mquire local participation through THE ROLE OF SPECIAL WATER DISTRKTS special water districts Water districts are among the most numerous Wa~rdistricts~subjecttothesameaiti~~and special-purpose local governments The 1982 Census challengesasarespecialdistrictgovernmentsgenerally. of Governments recorded approximately 9,400 spe In 1964, the U.S Advisory Commission on Intergovem- cial districts providing one or more water manage- mental Relations published a report entitled TlzePr~&Zem ment services, of which the overwhelming majority of Special Districts in American Government.38 The performed a single function. About 1,000 special “problem” language that has been applied to special water districts are engaged in supply provision, and districts of all kinds is extended to water districts 95 percent of these are located in the western states?8 Special districts are at the heart of the criticisms of Most of these are irrigation districts, supplying water the struclure of American government The creation of to lands that are not within the jurisdiction of a special water districts, especially basinwide in areas municipality. Special districts (1) distribute about half where communities within the basin also have districts, of the water used in the West, where most of the “results in layers of districts and a patchwork of developed water supply is devoted to irrigated agri- authority over water in the same area,” according to a c~lture,~~ (2) constitute 9 percent of all organizations recent publication of the Institute of Public Administra- delivering water but account for 47 percent of the ti~n.~ Similar language can be found in other reportsp0 irrigated acreage (nearly all the remaining acreage Water districts, like special districts generally, are was irrigated with water supplied by mutual water criticized as an additional expense for citizens, as district companies),30 and (3) range in size from the enormous boards and managers attempt to maximize their bud- (covering several counties and delivering millions of gets and staffs in pursuit of their own professional acre-feet of water per year) to the tiny (formed by a career goals Ye the 1982 Census of Governments few dozen residents to pump and distribute water reported that, of the 9,400 special diicts it identified as from a couple of wells). engaged in water supply and management services, The development of special water districts has only 350 (4 percent) were cla&fied as having “major been encouraged to varying degrees by the states. financial activity; meaning at least $3 million in annual Generally, states have been permissive in allowing expenditures or $10 million in outstanding debt This 4 the creation of special districts under general acts, on percent accounted for 75 percent of the expenditures of the satisfaction of certain conditions designed to all special water disttick~ Among all types of special establish the desire of the local residents to form a districts, about two-thirds had less than one full-time district31 In recent decades, some state laws have equivalent employee; about 6 percent had 20 or more become more restrictive, and the degree of state full-time employees42 control over the formation of special districts of all Special water districts may be reluctant to partici- kinds varies considerably. pate in cooperative ventures that involve the use of In the past, California has been the most liberal in groundwater storage space by state agencies or other the creation of water districts, with 38 general acts districts, even though it may be an advantageous use establishing water districts of different kinds with of the basin Districts tend to feel that they owe their first

U.S. Advisory Commission on Intergovernmental Relations 59 consideration to their residents and that storage pro- cost of services and the social costs of those services in grams involving “outsiders” may compromise those other opportunities forgone, a move toward pricing interests This reluctance can be overcome, however, if that reflects the full cost of provision would be a move the anticipated benefits from conjunctive management in the direction of greater efficiency Implementing are shared with the district and the local residents@ full-cost pricing-which was the principal recom- Another criticism of special water districts is that mendation made in the report on water supply forthe their voting and representation procedures can be National Council on Public Works Improvement in undemocratic. The boards of directors are often 1987-was deemed to require some degree of fiscal relatively stable and, depending on the legislation autonomy The special water district is the most that created the district, there may be no need even to frequently encountered type of autonomous organi- conduct uncontested elections. But it becomes diffi- zational form. Other types are enterprise fund ac- cult to sort out the extent to which governing board counting systems and state-chartered corporations.” stability and uncontested elections indicate citizen When water supply and management functions satisfaction versus lack of understandingandengage- are commingled with other general government ment As one observer noted, special water districts functions, two sources of inefficiencies arise. and their functions may not be well understood by Decisionmaking involves multiple claims on offi- citizens, yet a certain “lack of public understanding” cials’ attention, and water decisions compete with extends to the whole specialized field of water law everything from public assistance to pothole repair. and administration. The 1980 Arizona Groundwater Financing water supply also becomes commingled in Management Act, for instance, is so complex that few most cases with other services and infrastructure people understand how it works; the public is aware needs. The water enterprise can end up being tapped only that there is a law? Other measures can beused as a source of revenue for other programs and projects to determine how citizens evaluate special district (water subsidizes other services) or vice versa. Both officials (e.g., do they tend to support or oppose the situations generate inefficient pricing signals to creation of additional districts when presented with consumers and inefficient levels of investment “The the choice). Survey research can ask citizens to offer endemic condition which results from commingled evaluations aside from the electoral process.” decisionmaking is one of ‘public choice failure.“‘% In some places, voting for the board of a special While there are no guarantees that separate, self- water district is based on land ownership rather than sustaining special water districts will make optimal on one vote per person. Although the constitutional validity of such voting schemes has been upheld in investment and pricing decisions, at least the institu- districts that provide water for irrigation, this practice tional barriers that result from commingled decision- continues to be criticized, especially in the few cases making are removed. where one landowner controls a majority of the votes in Another advantage of the special water district is the district. The district then becomes a modern that users relate to it and use it for innovations, rules, manorial system in which the largest landholder may and conservation measures they might be reluctant to tax the property or assess the water use of smaller accept from a municipality or a jurisdictionally larger landowners in order to provide water services that government (e.g., state or federal government). For inure mostly to the controlling landowner’s benefit? example, the Soil Conservation Service of the U.S. As the Institute of Public Administration ac- Department of Agriculture has been engaged in an knowledged, the advantages of special water districts experimental program with a nonprofit research appear primarily by comparison with local govern- organization, INFORM, and local conservation dis- ments. Districts have the jurisdictional flexibility to tricts to encourage soil-moisture monitoring using cross other governmental boundaries, cover unincor- gypsum blocks in California’s Sacramento and San porated areas, and embrace a natural resource bound- Joaquin Valleys. The program increased farmers’ ary or a community of resource users4’ yields while reducing their consumption of water Special districts create greater opportunities for and energy inputs. This lowered farmers’ costs and developing revenue and pricing systems that (a) link increased their incomes with a program that con- the imposition of costs to the distribution of benefits, (b) serves water by improving the efficiency of irrigation provide incentives for efficient mix and use of services, timing and amounts. Such a program could reduce and (c) can make the district and its activities self-financ- aquifer depletion and related problems where irri- ing? Special districts often can, and often do, employ gated agriculture accounts for most of the consumptive user fees and service charges This is a more effective use of water The conservation district “is a natural linkage of costs to benefits than are more indirect home for an educational program about the gypsum mechanisms, such as the income tax or the property tax. block method of irrigation management because a While ideal-theoretical economic efficiency district enjoys the trust of local farmers as well as the would result from pricing policies that reflect both the support of technicians and government officials”51

60 U.S. Advisory Commission on Intergovernmental Relations Properly empowered, special water districts provide a framework for making water supply and THE ROLE OF ASS~UATIONS management decisions removed from the arrangements for other services. A district also provides a Associations of water users, officials, and profes- link to the state, region, and nation, and may serve sionals have played important roles in facilitating as a representative or bargaining entity. While effective water management These roles generally fit water rights statutes can be produced by legislative two broad categories: (a) mobilizing and organizing bodies, conflicts decided by courts, and regulations members in support of management initiatives, and (b) promulgated and implemented by administrative providing forums for communication and disseminat- agencies,“it appears to have been the experience.. . ing information and technical assistance that some form of publicdistrictserves anirreplace- Policy initiatives and coordination are some- able function.“52 times facilitated by associations of public officials, such as the Great Lakes Conference,an association of the governors of the eight Great Lakes states Another PRIVATE SUPPLIERS is the recently formed Upper Missouri River Basin IN THE WATER ECONOMY Governors’ Association, composed of the governors Private suppliers play a significant role in the of North Dakota, South Dakota,Montana, and Wyom- complex water economy Nearly 40 million citizens ing, which will provide a regular forum for the are served by privately owned community water discussion of water development, watershed con- systems. Smaller private systems generally serve struction, irrigation, and other issues..5B residential developments and mobile home parks, Water quality management has been facilitated and are usually owned by developers or homeown- by the American Water Works Association, which ers’ associations. Larger suppliers more often are publishes ik monthly AWA Joaumul and holds investor-owned utilities regulated by general govern- national and regional conferences, and the Associ- ments or by state public utility commissions.% The ation of State and Interstate Water Pollution Control number of investor-owned systems is increasing as the Administrators, which has organized conferences Population of the United States has grown fastest in devoted specifically to innovations in management areas that have a history of using that mechanism such and groundwater quality protection. a6 Florida, Arizona, and California. Associations can be especially important to The range of private sector activity is broad. It smaller water systems that do not have large enough includes supplying water for municipal and indus staffs to include a broad range of professional exper- trial uses and for irrigation,54 and, where markets for tise. The National Rural Water Association (NRWA), water righk are developing in the V&t, functioning as for instance, offers technical assistance in 34 states A brokers who link purchasers with available water program begun by the Oklahoma Rural WaterAssoci- ation has been adopted by NRWA to help smaller righk.56Private involvement does not always replace systems retain their local organization and integrity public involvement While private water enterprises while complying with federal safe drinking water are growing in number and size in some areas, in requirements. Among the services provided by the other places (especially in some growing suburban national program are: one-day training sessions in areas) private suppliers have been taken over by rural areas; on-site technical assistance; monthly or condemnation or purchased by municipalities5s quarterly newsletters with information and advice There has been some discussion and debate over on compliance with federal requirements; and emer- the propriety of privatization in the water economy. gency field assistance to systems expressing difficul- Advocates cite advantages in flexibility and respon- ties The association program features contact with siveness, lower costs, and more efficient pricing small water systems throughout each state and a practices Those who are critical or skeptical of full-time “circuit rider” who travels the state to privatization cite the broader availability of service provide assistance.* without regard to ability to pay that comes from Associations of water users have played impor- public provision, and the advantages of more direct tant roles in groundwater management and often political accountability. As concluded in a 1987 report have been forerunners of conjunctive management to the National Council on Public Works Improve- programs. Such associations frequently establish a ment, “Both philosophies merit consideration, but in broad-based forum for the discussion of water issues by certain circumstances privatization does offer real industrial users who produce their own water, munici- economic gains.“57 Private and public sector involve- pal and private suppliers, citizens concerned about rnent exist alongside each othec Neither exists as a envimnmental quality, and others Such associations complete answer to water supply and management have appeared throughout the county and can be the challenges Private suppliers, financing, and broker- fin% step toward the development of effective water ing provide additional alternatives for citizen choice. management plans, programs, and institutions

U.S. Advisory Commission on Intergovernmental Relations 61 .

In Colorado, the South Platte Water Users’Associ- Adjudications of groundwater rights nonetheless go ation helped develop means for coordinating the use back more than one hundred ye&. of surface and groundwater supplies. The role of In several cases, adjudications have been expan- water users’ associations in developing conjunctive ded to include all of the pumpers drawing water from use programs in southern California was summa- a common aquifer system. These basinwide adjudica- rized by a 1978 RAND Corporation report as follows: tions have drawn considerable criticism, and have Local producers organized themselves into been described as “lengthy, cumbersome, and expensive.“@ Court decisions over the allocation of rights water user associations that were the driving force behind not only the design of manage- have differed from basin to basin, and thus have been ment plans but also efforts to garner support criticized as lacking a uniformity on which water for their acceptance and to create institution- users could base their decisions. al arrangements and management tools to Courtshavebeen criticized forproducing”atbest implement them. They pushed for creation . . , piecemeal problem solving.“65 The decision “of one of local water districts to import water and court as to the best, most pragmatic solution may not aided the process of arriving at negotiated be the most efficient management solution.“” Fur- settlements through the courts. They pro- ther, courts take into consideration only the rights and moted state legislation to permit organiza- interests of the parties before them, which may not be tion of [replenishment districts] and to re- the full set of persons affected by the outcome. Finally, quire recordation of pumping.@ experience has shown that basinwide adjudications generally have been initiated “only after the ground In the Tucson metropolitan area, which is entire- water basins were in real trouble.“67 ly dependent on groundwater supplies, the Southern Despite these criticisms, groundwater users Arizona Water Resources Association has played a have continued to employ courts and basinwide pivotal role. Originally formed asa broad-based local adjudications. Groundwater users may compare interest group to ensure that Central Arizona Project the costs, defects, and potential outcomes of the water would be brought to Tucson, the association judicial process with those of otherpublicdecision- subsequently provided a vehicle for study,discussion, making processes and find the judicial process and development of responses to groundwater de- preferable or at least less undesirable. clines and quality problems, which engaged the There is no gainsaying that basinwide determi- whole community. The association initiated a man- nations of rights through adjudication are usually agement study in 1983 to determine the institutional “lengthy, cumbersome, and expensive.” However, mechanisms that would help bring about a balance of when users need to resolve problems resulting from water supply and demand in the Tucson basin. joint use of a common water supply, their choice is Although the Tucson area had been designated an between a “lengthy, cumbersome,and expensive” but active management area under the Arizona Ground- authoritative legal proceeding and a long, difficult, water Management Act, there were no staff resources and uncertain legislative or administrative process to conduct such a study, or any broad community There is no immediate, simple, and cost-free alterna- membership to support such a study and act on the tive. While the rules of civil procedure in the courts results. The association also was instrumental in may be complicated, they do not necessarily compare supporting a water-conservation program that has unfavorably with, say, the Adminisfmfive Procedures received nationwide attention for bringing percapita Act (or its equivalent in a given state) or the legislative water use in Tucson down to 150 gallons per day? process.68 Similarly, while it is true that court decisions are not necessarily the most efficient management solutions to the problems of joint use of a groundwater basin:’ legislative or administrative decisionmak- A DJUDICATIONS AND THE RIGHTS ing about groundwater rights may show a greater OF PROVIDERS AND PRODUCERS tendency toward inefficiencies because of the mis- Courts have been active in water rights and water matches between jurisdictional boundaries and those allocation for centuries. Courts in all states become of the affected communities. the arbiters of water rights laws and conflicts.” Similar analysis applies to other criticisms of Lawsuits have been customary means of asserting adjudications. The procedural rules of courts are and protecting rights to the use of water@ Lawsuits designed to limit those involved to “real parties in between surface stream users -particularly bydown- interest” They do not guarantee that all concerned stream users against upstream users - have a longer parties will be found, included in the proceedingand history in most places than those between groundwa- heard, although courts have a number of procedures ter users This reflects the fact that surface water for finding and joining additional parties to a contro- development preceded groundwater development versy Similarly, legislatures and administrativeagen-

62 U.S. Advisory Commission on Intergovernmental Relations ties offer no guarantees that all affected interests will wide determinations of rights result in the parties be heard, or heard equally. Likewise, the charge that acquiring something of value. These rights, if ac- adjudication is not undertaken until harmful effects quired through a determination separate from land have manifested themselves applies to public ownership, often are tradable within the basin. In decisionmaking processes generally. People initiate nonadjudicated basins, taxes on withdrawals may be judicial proceedings or introduce legislation or unused to try to limit aggregate extractions, but this dertake administrative rulemaking after problems alternative gives users nothing of value in their have arisen, not before. production; they can pay taxes on their pumping but Therefore, adjudications may be pursued by they cannot sell the right to pump.75 water users not because they are simple, inexpensive, Adjudications also may give users the right to and yield efficient solutions to problems before they recapture water stored underground, an essential occur, but because they are perceived as less inaccessi- element of conjunctive management Indeed,observ- ble, indeterminate, inefficient, and inflexible, and ers who have criticized the length and expense of more responsive than alternative forms of public adjudications have concluded nonetheless that the decisionmaking. In addition, some properties of “use of underground storage for imported water adjudications may actually be preferable from the cannot be completely successful unless the natural standpoint of water users. local water supply has been fully adjudicated so that extractions can be controlled and the basin fully Equity court proceedings offer such procedural managed.“76And,adjudications have been used often and remedial devices as the temporary restraining to generate the basis for financing the conjunctive order, the court-appointed referee, and the perma- management practices that help preserve the basin nent injunction that may Be especially well-suited to and exploit its advantages Once firm and limited the determination of water rights. In 1973,theNation- pumping rights are allocated, it becomes possible to al Water Commission explicitly endorsed the idea impose a surcharge on overpumping to pay for that “the States should consider employing the replenishment and to impose the costs of additional flexible powers of the equity courts to achieve surface supplies, whether locally developed or im- least-cost physical solutions” in groundwater basin ported, on new users whose demands exceed the conflicts.‘0 Adjudications in overdrawn groundwater available yield of the basin. basins have “stopped the clock on the acquisition of In all, the use of adjudications to establish rights, additional water rights.“n Courts can “act quickly to limit withdrawals, control overdraft, provide for prevent irreparable damage and then take longer to regulation of water in storage, and distribute the costs reflect on the merits. In the water resource field, no and benefits of basin management among users may institution can move so quickly to prevent harm so not reflect a “problem,” but a decision based on that time to consider exists.“n assessment of the capacities of the process relative to The appointment of experts to assist courts also other public decisionmaking processes This possibil- has been used in groundwater adjudications. The ity was recognized in a recent article on forums for court-appointed referee (called the special master in groundwater dispute resolution: some courts) can assemble information on hydrologic Of all of the water resources manage- characteristics and historical use of a basin that gives ment questions that ate raised, the judicial all parties a common information base, which can system is probably most effective in deter- assist in the negotiation of a settlement, and provides mining simple questions of water quantity the judge with the data needed for a decision. This based on factual testimony by expert wit- tends to blunt the criticism that judges, like legislators nesses. The court system is the only forum to and administrators, lack the technical expertise to determine traditional monetary damages make determinations. cases, the award of damages in inverse con- Another aspect of the judicial process that users demnation cases, and the issuance of injunc- may find beneficial is that, “Courts are deciders. tive relief against unlawful or harmful prac- When parties call upon them for decisions, they have tices It is also the only forum which acts as very few ways to avoid making it”n Individual the reviewing agency for special district and parties may not agree with the outcome of the process, agency determinationsR “but only in the rarest of cases is the court action an empty exercise which wastes time,“74 as may occur with legislative and administrative processes REGULATORS IN THE COMPLEX WATER ECONOMY: The outcomes of basinwide adjudications also OF QUALITY may be perceived as desirable by the participants. THE PROTECTION WATER Injunctions that limit extractions and bar additional The complex water economy is regulated by pumping, for example, help control overdrafting, an local,state,and federalgovernments. Local regulators essential element of improved management Basin- are most likely to be overseeing the operations and

U.S. Advisory Commission on Intergovernmental Relations 63 costs of private water suppliers such as utilities. When used to prohibit underground storage tanksa The local general governments contract for water supply county also has created a local hazardous waste trust with a private producer, the local legislative body fund; has established a cleanup program forcontami- generally retains oversight authority nation sites; and participates with two neighboring Local governments also have been actively in- counties in the “Biscayne Aquifer Project,# an attempt volved in protecting gmundwater quality and mmedy- to extend effective protection programs across the ing contamination problems. Metropolitan Dade reach of the aquifec@ County, Florida, for instance, depends on the shallow Interlocal coordination also can be effective in Biscayne Aquifer for its drinking water supply. This executing regulatory functions. In California, the aquifer is highly permeable and therefore very Southern California Association of Governments vulnerable to contamination The location of the (SCAG) became a vehicle for interagency and inter- aquifer along the coast also renders it susceptible to jurisdictional coordination in response to the discov- salt water intrusion if excessive withdrawals lower ery in 1980 of the volatile organic compound trichlo- the elevation of fresh water Located in a state that has roethylene (ICE) above state safe drinking water highly developed and strong groundwater quality levels in one-third of the wells tested in the San protection programs, Dade County has been aggms- Fernando Valley groundwater basin in Los Angeles sive in developing and integrating groundwater County. This basin has been the source for about management effortsm Regulation of supplies and one-fourth of the drinking water for Los Angeles,and quality are centered in the county’s Department of equally significant shares of the drinking water Environmental Resources Management In the 196Os, supplies for Burbank, Glendale, and San Fernando. there was salt water intrusion because of depletion The basin also is operated conjunctively by the Los and biological contamination from leaking septic Angeles Department of Water and Power and a tank systems. In the 197Os, industrial and agricultural watermaster as a direct source of supply and as a activities caused chemical contamination. Contami- storage reservoir for imported surface water via the nation prevention, wellhead protection, recharge Los Angeles Aqueduct area management, wetlands protection, and growth SCAG and the Los Angeles Department of Water management are all part of the Dade County ap- and Power applied for and received a federal proach to groundwater managementm areawide planning grant for a study to develop a Since the early 197Os, the county commission has “Groundwater Quality Management Plan for the San attempted to integrate water quality and supply Fernando Valley Basin.” The development of the concerns with the regulation of land uses. In 1974,the plan engaged citizen input through a citizen advise commission imposed a building moratorium in a part ry committee, and alerted the public to the contami- of the county that is a vital recharge area for the nation in a way that mobilized local opinion in favor Biscayne Aquifer, after which the area was zoned for of remedial action but avoided panic.@ minimum lot sizes of five acres. A Florida appellate State and local agencies were involved in plan court upheld the zoning plan against a constitutional development through a 30-member technical advise challenge, observing that water supply protection ry committee that met bimonthly The plan, which was a legitimate objective of a local zoning policy and specified roles for the governments, included proce- a valid exercise of local police powers in the interest of dures for public education; regulation and eventual the general welfare.so elimination of private disposal systems (septic tanks); Land use practices that create risks of groundwa- regulation of underground storage tanks, pumps, and ter contamination are closely monitored by the pipelines; enhanced landfill regulations; a ground- county Department of Environmental Resources water monitoring program and aquifer management Management Dade County also has established its and groundwater treatment The governments and the own broad definitions of hazardous wastes, which citizens accepted the plan, due to the inclusive process are more extensive than federal or state regulations by which it was produced, and all aspects of the plan and include more than 900 chemicals. The Depart- have been or are being implemented.@ ment of Environmental Resources Management has The technical advisory committee has been identified 8,000 generators of hazardous wastes and retained as an interagency advisory committee, closely regulates their activities through a permit which continues to meet bimonthly to discuss and systems1 that requires use of best management prac- oversee implementation. The plan was developed tices (BMPs) to protect groundwater quality and implemented regionally, without the creation of In addition, Dade County has been a leader in a new agency or department, but with the coordina- designating “wellhead protection areas,” protecting tion and cooperation of multiple jurisdictions. There sensitive amas around water supply wells from surface was no attempt to centralize groundwater supply activities that could lead to contamination. Within management, quality protection, and remediation protected areas, land use and zoning restrictions can be activities, but there was an attempt to coordinate the

64 U.S. Advisory Commission on Intergovernmental Relations activities of the entities that had responsibility for flects in part the fact that, “Although contamination those functions. The presence and involvement of the problems are similar across the states, each state has Southern California Association of Governments unique problems.“93 facilitated this coordination. Some states have moved toward administrative The states and the federal government perform centralization, but often this has been in environmen- regulatory and other functions in the complex water tal quality rather than water resources. In 1973, the economy. The remainder of this chapter focuses on Final Report of the National Water Commission the role of the states and the federal government. coupled its nzcommendation that surface and gmund- waterwithdrawalsbemanagedtogether,withcoordi- nated conjunctive use, with a recommendation that groundwater quality and surface water quality T HE ROLE OF THE STATES should also be managed together. The commission States as Regulators observed that “the expertise bearing on surface water quality will also bear on ground water quality,” and suggested that the “agency that regulates the one States regulate water quantity and water quality in a variety of ways. Several states have their own should regulate the othec”% drinking water standards as well as compliance Since then, many states have consolidated envi- requirements for water providers. ronmental quality programs, including surface and While most water supply provision and produc- groundwater quality, air, soil, and waste disposal. Such consolidations have separated quality and tion are local, state governments have long been engaged in overseeing local water supply provision, quantity planning and management% Furthermore, especially in ensuring safety, often through state health there appears to be some regional pattern to state choices. States in the West and Southeast have tended departments@ State-operated public water supply supervision programs have existed since as early as 1915.8’ toward administrative consolidation of water quanti- Washington state regulates supply operations ty planning and management, with a separate organization for environmental quality States in the and water quality. The state took several legislative steps in the 1970s toward regulating all water utilities. Northeast have more often integrated both func- Washington monitors suppliers’ compliance with tions.96 Connecticut and Arizona pmsent examples of drinking water standards and requires local retailers these different approaches. to plan for adequate treatment of supplies and for full Connecticut has been described by the National system metering. The state also has attempted, Research Council’s Committee on Ground Water through its Water Supply System Coordination Act of Quality Protection as “a national pacesetter in state- 1977, to “raise barriers to entry” into the industry in wide programs for ground water protection.“97 The state has developed an integrated management pro- order to reduce the number of smaller, undercapitalized operators that might ultimately be unable to gram that is connected with local land use planning and regulation of pesticide application. The goal is, meet quality requirements. The law encourages using existing producers to meet new water supply provi- where possible, to restore or maintain all groundwa- sion needs in critical areas.ffl ter to drinking water quality? Impetus for the program came from rapid growth in the number of wells The states’ role in water quality regulation has grown significantly in the past two decades.89 Many shut down due to contamination. states have adopted programs for cleaning up and Connecticut adopted a series of laws concerning regulating major sources of groundwater contamina- groundwater quality protection in 1985. One law tion. Indeed, as the National Research Council’s directed the commissioner of Environmental Protec- Committee on Ground Water Quality Protection tion to report to the legislature on options for found, “many states have broader authority than the protecting underground water supplies, with a map federal government to prevent and control ground- of areas needing protection and a strategy to protect water contamination. In the last several years, many watersheds and recharge areas from dangerous land states and local areas have initiated and expanded use activities Another law required land use officials to ground water protection programs by state man- consider protection of underground drinking water date.“% Most state water pollution control laws apply supplies in land use and zoning decisions Two other to groundwater as well as surface watecgl A 1988 laws authorize the restriction of general-use pesticides report from the U.S. General Accounting Office and the nzgistration of pesticide application companies found that states “usually deal with the threat of Among the elements of Connecticut’s integrated groundwater contamination within the framework groundwater management program are: of an overall protection program. Many states have organizations directly responsible for groundwater 1) State drinking water standards; protection, while others have placed these duties within existing organizations.“g? The diversity re- 2) State groundwater quality standards;

U.S. Advisory Commission on Intergovernmenta! Relations 65 3) An ambient groundwater quality monitor- wells in Tucson, which is wholly dependent on ing network, as well as monitoring of con- gmundwatec103 The legislation was developed tamination sources and sites; through a process of negotiation by a representative Aquifer classification; commission toward consensus and compromise 4) among affected interests, similar to the process for the 5) Aquifer mapping and inventory; groundwater management law. And, as was the case 6) Permits for all point sources of pollution; with the 1980 law, internal political divisions slowed the adoption of strong legislation, though the politi- 7) A statewide ban on toxic septic system addi- cal lines went drawn somewhat differently. Strong tives and some pesticides; environmental protection legislation aroused the 8) Use of best management practices (BMPs) opposition of some influential agricultural and min- for nonpoint sources of pollution; ing operato% weaklegislation was opposed by active environmental groups and would have been incon- 9) Wellhead protection and setback requirements; sistent with the commitment of the governotlOq Another significant political issue was what state 10) Use of land use regulations along with aqui- agency should be primarily responsible for adminis- fer classification, wellhead protection, and tration. One logical choice was the Department of setback regulations to protect aquifers from Water Resources, created by the 1980 legislation. Such contamination; an approach would have integrated groundwater 11) Requirement of groundwater withdrawal supply management and quality protection. Another permits; logical choice was the Department of Health Ser- vices, preferred by environmentalists, who viewed 12) Regulation of groundwater withdrawal per- water quality as a public health issue to be separated mits to maintain minimum adequate stream from the management of supplies Thenz was some flow where water sources are connected. consideration given to mating an environmental Groundwater in all areas of the state has been “super agency” with jurisdiction over water resources mapped and classified according to four categories of management, quality protection, pesticide control, and use. The highest protection is for utility and munici- other subjects None of these choices was adopted, pal drinking water systems. Two middle classifica- The 1986 Arizona Environmental Quality Act tions cover private drinking water supplies and created a Department of Environmental Quality, supplies that may not be potable unless treated with responsibility to protect water and air quality, because of prior impacts on water quality, The fourth and spread environmental regulatory authority classification designates areas where waste disposal across six existing and new state agencies. In the view is allowed because of the poor water quality, and of two former directors of the Department of Water because there are no future use plans.99Thisclassifica- Resources, this approach has raised coordination tion system provides the highest level of protection costs but was an understandable resolution of the for 90 percent of the state’s groundwater+@’ issue of administrative responsibility and authority? The Connecticut program is based on the prem- The law required all groundwater quality stan- ise that, while much should be done by the state, the dards to be based on an evaluation of social, econom- principal implementation of resource protection should ic, and environmental costs and benefits. All aquifers be done by local authorities, and some local capacity were to be inventoried and classified by June 30,1987, building wmains to be done. The gmundwater strategy and a statewide monitoring program was established is “a partnership between the State and its 169 munici- to improve the data base on groundwater quality palities for the management of ,ti rrsoua”lD1 Aquifer protection permits have been required for all The state Department of Environmental Protec- activities that have been found to pollute gnnmdwatet tion, which has been in existence since 1972, contains The law also directs the Commission on Agriculture and a central information gathering and disseminating Horticulture to regulate the use of pesticides through unit, the Natural Resources Center, to provide data to licenses and permits, and bans the use of any pesticide state and local decisionmakers. The center makes unless the manufacturer has shown that contamination extensive use of the cooperative investigations pro- will not result The Arizona Attorney General is autho- grams of the U.S. Geological Survey.lLa rized to enforce water quality standards’” In Arizona, as was noted in Chapter 3, after Although Arizona approached groundwater passing the 1980 Groundwater Management Act, supply management and quality protection with officials began work on quality protection, culminat- statutes that created new departments, this does not ing in enactment of the Environmental Quality Act of mean that there is no connection or coordination. The 1986. Some added pressure for this legislation came well registration, metering, and withdrawal report- from the 1984 discovery of trichloroethylene (TCE) in ing requirements of the management law will con-

66 U.S. Advisory Commission on Intergovernmental Relations tribute to the knowledge base for quality protection,‘” through pricing mechanisms. Massachusetts and and the aquifer inventory and classification and New Jersey have used control of access to large-scale groundwater monitoring programs will be useful for surface water projects to encourage changes in the management officials.‘OB behavior of local water users and their organizations, These examples have been chosen to highlight although the tactical approaches of the two states some different possibilities for the organization of have been different groundwater protection in relation to the management of supplies; no attempt has been made to inventory and States as Rulemakers describe the number and variety of state and local programs Through the YXKls, new groundwater pmtec- One of the most important state roles in the tion legislation and regulations, and new forms of complex water economy is making the rules for access administrative organization and coordination have to water supplies Although the federal government has been generated in vktually all stateslog the constitutional authority to regulate navigable water- The Committee on Ground Water Quality Protec- ways, the states have had responsibility for making and tion of the National Research Council concluded enforcing the laws that govern access to the withdrawal from its review of state and local groundwater quality and use of surface and groundwater supplies protection activities and programs that As much of the emphasis in water resource management has shifted from developing additional no single program was found to address all supplies to managing and allocating supplies, the aspects of ground water protection problems historical role of the states in water rights administra- comprehensively. A comprehensive pro- tion isseen as enhancing their present and future role. gram would probably incorporate elements “[A]s priorities shift from water resource develop- from a number of the state and local programs reviewed in this report as well asother ment to management, the states are the more appropriate level of government to initiate and administer techniques not discussed here. While no programs.1113 States have broad police powers to single program can be held out as a model for make policy in health, welfare, and environmental others to follow, collectively they comprise a protection. Almost all states have health and environ- reasonable array of alternative ground water mental agencies, and many have separate water protection program designs being used.llO resources agencies or departmentsu4 These facts, State laws and organization of groundwater combined with the states’ historical role and current quality protection programs doubtless will continue activity, have formed the basis for some analysts to to vary, reflecting emphases on different groundwa- conclude that “the states are uniquely qualified to ter quality problems, and different institutional ar- address the issues spec$ic to their region, and that rangements on which to build, as well as legal and many states have already developed solutions to cultural differences Deviations from suggested statuto- some of their water management problems.“115 ry or administrative models do not necessarily reflect Thisaspectofthestates’mle-thedefinitionofwho inadequacies, but may indicate successful adaptations has rights, how those rights am acquired, and in what to the challenges faced by states and communities ways (if any) they am quantified and limited-is at the heart of the institutional arrangements for managing States as Water Suppliers watermxnucesThestaterulesdiffer;andthisaffectsthe patterns of water use and development The effects of States also have operated in the complex water state water rights laws on use and development will be economy as large-scale water suppliers or whole- considered at some length in the next chapter salers. While California’s State Water Project, which conveys water from the north to the more heavily States as Policy Innovators populated south, is perhaps the largest and best known state water supply undertaking, state involve- States developed and modified water rights rules ment is far from being a western phenomenon. For and quality regulations and programs considerably example, Pennsylvania has long authorized and in the 1970s and 1980s. During the 1980s in particular, constructed flood control projects;“’ Massachusetts it can easily be contended that the states have been has supplied the Boston area with water from the the principal sources of groundwater policy innova- western part of the state for over a century; and New tions, 54s in other water management categories, the Jersey has transferred water from the Delaware River major actor in groundwater is state government”l16 to the more heavily urbanized northeastern part of From 1980 through 1989,3Ostates adopted signifi- the state since the E300s.“2 cant new groundwater supply management and As noted in Chapter3,states that perform the role quality protection policies.“‘These states were signif- of water supplier have opportunities to influence icantly more dependent on groundwater supplies user behavior through conditions on access and than those that did not adopt new policies,suggesting

U.S. Advisory Commission on Intergovernmental Relations 67 that states respond to perceived water supply man- The Congress also has cooperated with and agement needs. supported states efforts at interstate resolutions of During the 198Os, 24 states adopted new water water supply issues involving multistate resources quality protection laws, groundwater classification The Congress has authorized interstate water com- systems, and/or groundwater quality standards Ac- pacts, and the federal government has been a party to cording to 1987 testimony by the executive ditector of federal-interstate compacts, such as the one govern- the Association of State and Interstate Water Pollution ing the Delaware River Basin. Control Administrators, two-thirds of the states had or In addition, the federal government has encour- were developing groundwater quality standards and/or aged and supported state and local activities and use classification systems 118 During the 1985,19&j, and initiatives in water resource management through 1987 legislative sessions, 37 states enacted groundwater income tax laws. By exempting the interest earned by quality protection legislation, either to address specific holders of state and local securities from federal programs (such as underground storage tanks or pesti- income taxes, the Congress and the executive branch cide use) or to develop statewide strategies119 have made it easier for governments to sell the securities Forty states have discharge control permit that finance state and local water resource activities programs, and these programs frequently require a However, limits were placed on this support by the Tnw discharger of contaminants to monitor groundwa- R&m Act qf 2986. These forms of support have been ter quality.iza Forty-nine states have accepted pri- accompanied by more active involvement, such as mary enforcement responsibility under the provi- financing and production and dissemination of water sions of the federal Safe Drirtkirrg WaterAct, which msoumes information, financing and production of involves: (1) engineering plan review, (2) com- surface water development and impoundment proj- pliance monitoring, (3) conducting periodic sani- ects, and regulation of water quality tary surveys, (4) certifying laboratories, and (5) enforcement against persistent violators of drink- A Supportive Federal Role: Information and Technical Assistance ing water quality standardsJ21 The federal government has contributed importantly to the production and dissemination of infor- THE ROLE OF THE FEDERAL GOVERNMENT mation and scientific knowledge about groundwater Although management problems and responses dif- The federal government has been involved in fer from place to place, many elements of basic water resource development and management for hydrologic research into groundwater are conducted much of our history Most of this involvement has been in the same way and require the same sort of education directed toward surface water supply development and expertise throughout the country and the benefits States, communities, and industries have had the of research reach beyond the boundaries of the commu- primary responsibility for water provision and man- nity in which it was conducted. Thus, while states and agement In the past, the Congress has recognized this local communities have been interested in supporting primary state and local role, and many federal water and participating in the promotion of research and the laws contain policy statements that describe the development of extensive resource information, they federal government’s role as limited and ancillary.‘” have been reluctant to fund most types of water This federal role has been manifested in several ways research The appropriate scale for the conduct of basic Perhaps the most plain has been statutes directing research and the collection of scientific and technical federal agencies and installations to comply with information on water resources is national*= state water rights laws and administrative proce- The Department of the Interior’s United States dures. This has included acquisition of water rights Geological Survey (USGS) has been collecting data for federal projects through appropriation permit on water resources since 1888. Currently, USGS procedures or condemnation and payment in situa- collects streamflow and discharge data at 13,212 tions where the federal government could have surface water sites, water level and pumpage data at exploited its “navigation servitude” under the law.123 35,621 wells, and water quality information at 4,610 The Congress elected instead to defer to the states surface-water sites and 7,648 wells USGS publishes Federal deference to state water laws, which dates back hydrologic data in the form of annual reports for each to the acquisition of the western states during the 19th state, and a monthly catalog of publications126 century, has been seen by some as a missed opportunity States and communities have relied strongly on to impose ua uniform system of water law on the region, USGS reconnaissance studies and hydrologic investi- though in view of the well known difficulties that gations, and the “early systemic collection and inter- developed over the federal land policy in the area, them pretation of hydrological data has been important to is no reason to assume that Congress would have the development of current state groundwater pro- devised an ideal system of water law.“iZ4 gramsn127 Some state geological surveys date back to the

68 U.S. Advisory Commission on Intergovernmental Relations mid-180@ but most state efforts evolved in association effort, compiles the information, and analyzes re- with USGS. Cooperative investigations began in 1895. gional and national water use statistics and trends. The Congress appropriated funds specifically for coop- USGS also produces National Water Summary erative studies beginning in 1905, which began the reports as part of the National Water Summary Federal-State Cooperative Program of the U.S. Geologi- Program, begun in 1983. Each report focuses on a cal Survey In 1928, the Congress set a 50 percent upper single topic (groundwater resources, groundwater limit on the federal share of the costs of any investiga- quality,etc.) and presents state-by-state reports plus tion under the pmgmm national summary information. The reports have The Federal-State Cooperative Program allows been instituted as a way to bring together into an states and communities to enter into agreements with annual presentation information generated through USGS for hydrologic investigations into an actual or the various USGS programs. anticipated water-supply problem. States and com- The Bureau of Reclamation, also part of the munities are able to define the problems, contribute at Department of the Interior, conducts some ground- least half of the funds for the investigations, have water studies in connection with planning for its access to the expertise and experience of USGS, and surface water projects -estimations of pumping reuse the information in their decisionmaking pro- quirements for projected crop demands, along with cesses. The cooperative program has produced much calculations of available local supplies based on of the information available on the nation’s water groundwater geology, depth, movement, and re- ~esourres, including information used by other federal chargela-but the bureau typically does not do agencies In fiscal 1983, more than 800 “cooperators” long-range groundwater studies. More recently, the participated with USGS in the program. States partici- bureau has been supporting research and demonstra- pated in 252 projects, municipalities in 205, counties in tion programs on artificial recharge, which would 183, and other entities (including special districts, provide information that could feed back into state interstate compact organizations, and Indian tribes) in and local conjunctive management programs. 204 USGS publishes several series of reports based on Several other federal agencies, including the cooperative program projects The federal government also has assisted states departments of Agriculture, Energy, and Defense, the Environmental Protection Agency (EPA) and and communities in building institutional capacity the National Science Foundation (NSF), have allo- through the development of their own expert person- cated funds for water research.131 With all of the nel. The Wafer Resources Research Act of 1964 (most recently reauthorized in 1984) provided matching federal, state, local, academic, and industry programs funds for the establishment of Water Resources together, there is and has been a sizable water Research Centers in each state. The centers conduct resources research effort. Federal support from the research and investigation, and serve as training mid-1970s to the mid-1980s totaled over!+2 billion132 (a centers for water resources professionals. USGS also small fraction of the amount spent on water project operates a National Training Center in Denvec In construction and maintenance over the same period). addition, the Wafer Resources Planning Act of 1965 A 1989 report from the Office of Science and Technol- created the federal Water Resources Council (WRC) ogy Policy in the Executive Office of the President and authorized financial assistance to the states for found that federal science and technology programs planning. Although WRC and the planning funds concerning groundwater expended over !$890 million were discontinued in the early 198Os, state water over the five fiscal years ending with fiscal year management agencies greatly expanded in size and 1990:% The expenditures by federal agency and pro- expertise through the 197% and 1980sm gram category are shown in Figure41. Nonetheless,the The U.S. Geological Survey has been publishing report concluded that “scientific uncertainties, lack of estimates of water use (figures such as those used in adequate technologies, lack of basic data, and shortage Chapter 2 of this report) since 1950. The first reports of skilled scientific personnel still hinder the ability of issued were based on data derived from many sources federal, state, and !ocal governments and the private of varying degrees of accuracy, so in 1977, the sector to develop and implement effective gmund- Congress acknowledged the need for uniform infor- water management, protection, and remediation poli- mation and directed USGS to undertake a coopera- cies and ~mgrams”‘~ tive federal-state National Water Use Information In the area of research into basic hydrology and Program. Begun in 1978, the information program hydraulics, the major federal participants are USGS, became part of the Federal-State Cooperative Pro- the Department of Energy’s Office of Energy Re- gram. The states collect much of the data and then search, the Department of Agriculture’s Agricultiral receive state water use information and reports from Research Service and Cooperative State Research USGS. As of 1988,49 states and Puerto Rico participate Service (ARSKSRS), NSF, the National Aeronautics in the program. lz9 USGS directs the data collection and Space Administration (NASA), and the Depart-

U.S. Advisory Commission on Intergovernmental Relations 69 Figwe 4-1 Groundwater Research Expenditures, by Federal Agency and Program Category

. ..by Federa! Agency

FsaLlxAn . ..by Ptogra~~~ Category

0’ (SO6

Source: U.S. Office of Science andTechnology Policy, Fedelnl Gloumi IV&r Scienced Technology Prognms (Washington, DC, 1989)

70 U.S. Advisory Commission on Intergovernmental Relations ment of Commerce’s National Oceanic and Atmo- releases of surface waters from a flood control or spheric Administration (NOAA). Over the five fiscal multipurpose reservoir can be coordinated with years 1986 through 1990, federal mseamh program ex- groundwater use to maximize total available water penditures in this area totaled $123.4 million, of which supply while minimizing damage to surface structures USGS spent $51 million, the Office of Energy Research and underground aquifers and protecting overall quali- $27 million, the ARS/CSRS $21.5 million, NSF $9 mil- ty Therefore, federal involvement in the construction lion, NASA $6.7 million, and NOAA $5.2 million. and operation of surface water projects has provided a Federal research expenditures for groundwater useful tool for state and local conjunctive management quantity resource assessments from fiscal year 1986 of water supplies, as well as protection from flooding136 +-trough fiscal year 1990 amounted to $134.3 million; The federal government became involved in JSGS accounted for $132 million. Federal research water resource development through navigation expenditures for development and testing of moni- improvement and flood control. Planning for naviga- toring, characterization, and assessment methods tion improvements on a significant scale began early 1990 totaled $58.4 million. The major federal agencies in the 19th century, and in 1824, the Congress charged funding and conducting research were EPA, USGS, the United States Army Corps of Engineers with and AARSKSRS. The major federal agencies support- responsibility for implementing the improvements. ing information storage, retrieval, and handling and Flood control was added to the Corps’ responsibility training and education are the Department of Agri- in the middle of the century, when the Mississippi culture’s Soil Conservation Service and Extension and Missouri River basins were being ~ettled.‘~ Service,USGS,and EPA. Total federal research expen- Generally, projects built and operated by the Corps ditures in these areas were $147.6 million. have been planned as surface water impoundments, Estimated federal groundwater research expen- with minimal consideration to groundwater supply ditures for fiscal 1990 were $225 million, the largest relationships, The Corps monitors groundwater at a amount yet budgeted for a single year: Of that total, few sites, and some multipurpose projects have quantity assessments was budgeted for 15.1 percent, included authority for spreading waters for replen- and hydrology and hydraulics for 13.9 percent ishment (this usually is done by local agencies).‘37 Another 23.1 percent of the funds would support In the decades after the Civil War, federal laws training and education; information storage, retriev- and policies encouraged the rapid development of al, and indexing and the development and testing of the West Through the Desert Land Act of 1877, the methods of monitoring characterization, and asses- Congress authorized the sale of land in 64CLacre tracts sment Half (49.8 percent) of the funds were allo- in most of the arid region of the West to persons who catedto the Department of the Interior (which in- would irrigate lands within three years. This marked cludes USGS and the Bureau of Reclamation), 24.4 the official beginning of a federal policy of encourag- percent to the Department of Agriculture, 10 percent ing the development of irrigated agriculture in the *to EPA, and the remaining 15 percent to the other western states.‘“In 1902, the Congress backed up that principal federal groundwater research agencies policy with the adoption of the Reclanration Act, In 1986, the Congress appropriated funds for a authorizing federal funding and construction of National Water-Quality Assessment Pilot Program, water development projects to be operated by USGS. The purpose has been to The Reclamation Act directed the Department of test and refine assessment approaches and meth- the Interior to undertake examinations and surveys, ods and to evaluate the potential costs and uses of a and to locate, construct, and maintain irrigation nationwide assessment program Four surface-water facilities, to be paid for out of a reclamation fund. The and three groundwater pilot projects were chosen. initial fund came from the sale of land, and was to be A full-scale national assessment program would reimbursed, without interest, by project beneficiaries provide a consistent set of descriptions of water within ten years. The Bureau of Reclamation was quality, and identify long-term trends (if any). established and joined the Corps of Engineers in Another possible outcome would be the identifica- constructing these surface water facilities. tion of factors and conditions that appear to be While the Bureau of Reclamation has had a associated with changes in water quality, and the crucial impact on water resources management in the identification of aquifers thatareespeciallyvulner- western states, the Army Corps of Engineers, which able to degradation and contamination. has a nationwide reach, spends the lion’s share of federal water resources development outlays. Of the The Federal Government as Water Supplier $3.4 billion in federal outlays for fiscal 1986, 70 percent was spent by the Corps, 21 percent by the Conjunctive management of water resources Bureau of Reclamation, 8 percent by the Department often involves coordination of surface storage facili- of Agriculture’s Soil Conservation Service, and 1 ties with underground storage capacity Controlled percent by the Tennessee Valley Authorityn9

U.S. Advisory Commission on Intergovernmental Relations 7l The Federal Government as Regulator federal legislation for groundwater quality protection. The Congress required EPA to set maximum Federal water quality efforts were originally contaminant level goals (MCLGs) within three years directed toward surface supply protection and reme- for 83 contaminants previously listed in 27te Federal Register. Addressing this broader set of contaminants diation. The Federal Wafer Pollution Control Act (Clean was one of the main purposes of the amendments.l* Water Act) of 1972 did not address groundwater, although some of the activities under the act have The amendments also require monitoring of a large impacts on groundwater quality and some EPA number of unregulated contaminants, and will likely interpretations extended the provisions to groundwa- require disinfection of groundwater supplies that teP Subsequently, through the Safe Drinking Water were previously not disinfected, and filtration of Act of 1974, and in particular the Safe Drinking Water nearly all community surface water supplies.146 Amendments of 1986, federal legislation has reached EPA has established drinking water standards for groundwater as a source of drinking water more than 50 contaminants EPA does not issue The Clean Water Act provided federal grants to separate groundwater standards and has not sup- municipalities to finance up to 75 percent of the ported the adoption of uniform national standards, ~ design and construction costs of wastewater treat- although it has recognized the appropriate use of ment facilities needed to meet the goal of secondary drinking water standards as guidelines indicating treatment levels for all publicly owned treatment acceptable levels of contaminants in groundwater works by 1977. Amendments to the law extended the The subtlety of that distinction apparently has been 1977 deadline, eventually to 1988. A reauthorization lost on the states. EPA drinking water standards are of the Clean Wafer Act in 1987 maintained the 1988 adopted by most states that have numeric groundwa- deadline for treatment compliance but made other ter quality protection standards, and most state drink- significant changes Amendments provided for the ing water administrators told the U.S. General Ac- phasing out of the federal construction grants program counting Office that, in their view, drinking water by 1994 and offered federal assistance to the states to standards “should” or “probably should” be used as capitalize state revolving loan funds to provide assis- groundwater standards.‘* States use EPA drinking tance to communities with considerable flexibility141 In water standards “both as an indicator of what sub the words of the executive director of the Association of stances to regulate and as an indicator of the level at State and Interstate Water Pollution Control Administra- which to set the groundwater standards.“149 tors, “After 1994, the federal government should be out of The Safe Drinking Wafer Amendments also re- the sewerage business, and it will be up to state and local quired states to submit to EPA by July 19, 1989, governments to meet the Congmssional challenge and programs for protecting the areas around water wells be ready by 1994 to assume full responsibility for the that supply public drinking water from contamina- Clean Water Program.n*rlz tion. State programs would be considered adequate More than half of the states have grant programs unless rejected by EPA within nine months of submis- to assist communities with wastewater treatment sion. States are required to implement the programs projects;‘” nearly half of them have established within two years of submission. State development revolving loan funds. Progress in the construction of and implementation of wellhead protection pro- wastewater treatment facilities and the continuation grams is supported through the authorization of of the clean water program contribute to federal, grants meeting from 50 to 90 percent of program state, and local efforts to prevent contamination and development and implementation costs. protect groundwater quality Treated wastewater is Some provisions of the amendments also recog- less likely to produce contamination and can be a nized the special needs of small water systems. source of recharge water in groundwater basins with Systems serving fewer than 150 connections, for artificial replenishment programs. example, may meet the requirements for monitoring In the 1987 amendments to the CIeun WaterAct, unregulated contaminants simply by submitting a the Congress also authorized up to $400 million for water sample to the state or EPA. The amendments federal support of state and local nonpoint-source authorized up to $10 million dollars annually for fiscal pollution programs, Nonpoint sources of pollution - years 1987 through 1991 to aid small water systems such as agricultural and urban drainage and return complying with EPA regulations It remains to be seen flows, and storm runoff -are especially likely to whether the authorized funds will be appmpriated;150 affect groundwater quality. However, funds were not they were not appropriated during the first two budget appropriated during the first two years after the cycles after adoption of the amendments amendments were enactedJM One of the ongoing problems in implementing The Safe Drinking Water Amendments of 2986 the Clean WaterAct and the Safe Drinking WaterAct has extended many federal requirements to groundwater been building implementation capacity. The 1986 sources, and this act now constitutes the principal Safe Drillking Water Amendmenfs made the states the

72 U.S. Advisory Commission on Intergovernmental Relations primary implementation and enforcement agents for groundwater protection and remediation decisions, EPA-promulgated regulations Administrators gener- and (4) coordinate groundwater protection activities ally believe that there is not sufficient financial internally as well as with other federal agencies and capability to implement the Act properly in many the states. The EPA groundwater protection strategy states and public water supply systems, and that also focuses on areas where groundwater contamina- additional financial assistance will be neededJsl tion would cause the greatest harm and assigns The Cleun Wafer Act and the Safe Drinking Water highest priority to groundwater that is used for Act are only two of the federal laws relating to water drinking or to supply unique ecosystems.‘56 quality, and EPA is only one of the federal agencies A key element of the EPA groundwater protec- involved in groundwater quality protection, albeit tion strategy has been to combine capacity-building the principal one. Depending on the definition of measures with encouraging states to develop and “relate,” it has been estimated that from fewer than 10 implement their own strategies. Under Section 106 of to more than 40 federal statutes relate to groundwater the CZeun Wuter Act, EPA has offered grants to the quality?” Other prominently involved federal agen- states to assist them in developing statewide ground- cies in addition to EPA include the U.S. Geological water quality protection strategies, which the states in Survey, which produces much of the information on turn submit to EPA for review and approval. groundwater used by EPA and other regulatory agencies, the Department of Agriculture (which has Summary some authority regarding pesticide use), and the Department of Energy (which has authority regard- Through support of research and technical assis- ing the disposal and handling of radioactive materi- tance, program development, and development of als). States and local governments have observed that drinking water standards in connection with the Safe the federal groundwater protection effort, coming as Drinking Water Amendments, EPA and other federal it does under the authority of the Safe Drinking Water agencies have been attempting to improve ground- Act, the Clean WaterAct, the Resource Conservation and water quality protection. At the same time that it is Recovery Act, the Federal Insecficide, Fungicide, and committed to helping, the federal government should ensure that its activities do not harm ground- Rodenticide Act, the Comprehensive Environmental Re- and other water quality and make protection more difficult for sponse, Compensation, and Liability Act, the states and communities that have primary imple- statutes, has at times lacked coherence and coordina- mentation responsibilities. tion, and has subjected state and local administrators Regardless of whether its water projects wee to a plethora of obligations. east or west, single purpose or multipurpose, federal In 1984, in an attempt to provide a focal point for involvement in solving water resource problems has federal efforts in groundwater quality protection,and been organized by individual projects rather than on to improve program coordination and enforcement the basis of some federal plan or policylM The history of laws and regulations, EPA established an Office of of federal involvement in water resources is replete Groundwater Protection. EPA published its “ground- with instances of boards, commissions, and councils water protection strategy” in 1984, which relies formed to articulate a national water policy and heavily on state implementation and enforcement of coordinate federal programs, with each body elimi- laws and regulations, with technical and financial nated in an executive branch reorganization or a assistance from the federal governmentls3 The EPA period of budget austerity, and of studies by commis- groundwater protection strategy recognizes the his- sions yielding insightful conclusions and recommen- torical and legal roles of the states in water allocation dations that were never adopted.15’ and the localized nature of most contamination The most recent commission was the National sources and incidents; acknowledges that the states Water Commission. Its 1973 report, W&r Policies for the have the principal role in protecting groundwater Future, advocated conjunctive management of water quality and have developed several powerful state xtzfmms at the scale nearest the useIs of the n5outces, with federal suppoti for march and problem identifi- and local authorities; and declares a position in favor cation, diminishing federal support in planning and of strengthening. not displacing or disrupting, state financing development, and a strong federal role in and local initiativesJs quality pmtection, along with a host of other morn- The strategy identifies four major objectives for mendations that have yet to be implemented. Coordi- EPA’s role in groundwater quality protection: (1) nation of federal water programs and ongoing analysis strengthen the states’ institutional capacity to protect of national water policy were most recently institution- groundwater resources (principally through finan- alized for a time in the U.S. Water Rexnmxs Council cial and technical assistance), (2) give greater empha- (formed under the auspices of the Wuter Resoltrces sis to regulating sources of contamination that are of Hutming Act of Z-%5), but that body was terminated in special national concern and are insufficiently ad- 1982 as part of federal spending reductions in the first dressed, (3) develop guidelines for consistency in EPA term of the Reagan Administration.‘5B

U.S. Advisory Commission on Intergovernmental Relations 73 The project-by-project approach and the lack of a tions: A Report on AmericaS Public Works (Washington, comprehensive federal management plan have been DC, 1988). criticized. The organization of federal support and lo Wade Miller Associates, p. 17. participation also is criticized. Water resource devel- l1 Ibid., p. 18. opment and management are part or all of the l2 Ibid., pp. 17-18. portfolio of about 25 federal agencies,i59 as well as the l3 Kyle Schilling et al., The Nation’s Public Works: Report on subjects of hundreds of federal laws. Neil S. Grigg, Water Resources (Washington, DC: National Council on attempting to summarize the federal role in ground- Public Works Improvement, 1987), p. 134. water management, wrote “The federal government is I4 Wade Miller Associates, p. 18. responsible for policy formulation, mgulation, data l5 Ibid., pp. 91-92. collection and research. These responsibilities are fragmented between agenciesR160 The existence of multiple l6 Ibid., p. 18. federal agencies with involvement in water resource l’ Ibid. information, development, and management has been l8 Schiing et al., p. 134. cited as a source of confusion and inefficiency161 I9 This distinction isexplained in detail in ACIR, IIre Organi- Much of the literature suggests that the federal role zation of Local Public Economies. and participation are declining now that the emphasis 2o James Krieger and Harvey Banks, “Ground Water Basin has shifted away from water development toward Management,” CalQorm’a Law Review 50 (1962): 74 (em- management of existing supplies*62 However, other phasis added). changes during the 1980s suggest the possibility for a 21 SchiUing et al., pp. 134-135. greater federal role in the management of water 22 Jurgen Schmandt, Ernest Smerdon, and Judith Clarkson, supplies 163 Among these changes am the federal court State Water Policies (New York Praeger publishers, 1988), decisions striking down state restrictions on gmundwa- p. 1. ter supply exports and ruling that groundwater is an zs Ostrom and Ostrom, pp. 141-142. article of interstate commerce subject to direct federal 24 John Leshy, “Special Water Districts-The Historical regulation; the problems surrounding federal reserved Background,” in James Corbridge, ed., SpeciaI Water Dis- rights and Indian water rights, especially in the western tricts: Challengefor the Future (Boulder: Natural Resources states; and legislation introduced in the Congmss to Law Center, 1983), p. 13; Sidney Harding, Water in Cali- fornia (Palo Alto: N-P publications, 1960), p. 215. require the use of nondegradation standards for groundwater quality programs nationwide, and to 25 Warren Viessman and Claire Welty, Water Management: Technology and Institutions (New York: Harper and Row, require prior federal approval of state groundwater 1985), p. 25; SchiIIing et al., p. 7. supply management programs The following chapter 26 See for example, Lyle Craine, “Intergovernmental Rela- considers these and other problems and prospects in tions in Water Development and Management.” Paper water resource management presented at the Southern Political Science Association, Gatlinburg, Tennessee, 1959, pp. 13-14: Notes As a theoretical proposition, should we not i Vincent Ostrom and Elinor Ostrom, “A Behavioral Ap- conceive, and encourage, insofar as feasible, the proach to the Study of Intergovernmental Relations, operation of a competitive public market among 7he Annals of the American Academy of Political and Social water service enterprises as the primary basis for Science 359 (May 1965): 138. allocating water services from a given river management scheme? . . . Thus, the tricky water man- * For example, U.S. Advisory Commission on Intergov- agement decision, i.e., which customers get what, ernmental Relations (ACIR), 7he Organization of Local results from the relative demand as expressed by Public Economies (Washington, DC, 1987). the willingness of each customer to pay. 3 Ostrom and Ostrom, p. 138 (emphasis added). 27 Leshy, p. 24. 4 Ibid. 28 Ibid., pp. 12-13. 5 William Lord, Director, Water Resources Research Cen- 29 Ibid., p. 13. ter, University of Arizona. Proposal for the Comparative 3o Ibid. Study of Water Management Institutions. 1988. 31 Institute of public Administration, SpeciaZ Districts and 6 Ostrom and Ostrom, p. 140. Public Authorities iti Public Works Provision: Report to the National Council on PubIic Works Improvement (Washing- 7 Wade MiUer Associates, ‘Ike Nation’s Public Works: Report ton, DC, 1987), p. 24 (unpublished); Harold Rogers and on Water Supply (Washington, DC: National Council on Alan Nichols, Waterfor California: Planning, Law and Pmc- public Works Improvement, 1987), p. i. tice, Finance (San Francisco: Bancroft-Whitney, 1967), Vol. s Vincent Ostrom, Robert Bish, and Elinor Ostrom, Local 2, pp. 49-50. Govermnent in We Uuited States (San Francisco: ICS Press, sz Institute of public Administration, p, 65; Leshy, pp. 22-23. 1988), pp. 59-60. ss Charles Phelps et al., Efficiart Water Use in California: Ex- 9 See especially Wade MiIIer Associates, and National ecutive Summary (Santa Monica: RAND Corporation, Council on Public Works Improvement, Fragile Pounda- 1978), p. 10.

74 U.S. Advisory Commission on Intergovernmental Relations 34 Institute of Public Administration, p. 65; Leshy, pp. 22-23. 57 A fuller description of the NRWA program can be found 35 Institute of Public Administration, p. 65. in Wade Milier Associates, p. 84. ss Albert Lipson, Eficient Water Use in Calijornia: Ike Evolu- 36 Ibid., p. 62. tion of Groundwater Management in Southern California 37 Ibid., pp. C-5 and C-6. (Santa Monica: RAND Corporation, 1978), p. 16. 38 ACIR, l%e Problem of Special Districts in American Govern- 59The activities of SAWARA can be found described in ment (Washington, DC, 1964). greater detail in Schmandt et al., pp. 48-53. 39 Jnstitute of Public Administration, p. 62. a Gary Weatherford et al.,Acquiring Waterfor Energy: Lnsti- tutional Aspecfs (Littleton, Co: Water Resources Publica- 40 Compare, for examp le, Leshy, p. 22: tions, 1982), p. 19. In the modern era, most states have chosen 6* Grant Thompson, Courts and Water: The Role of the Judicial not simply to expand the purposes of traditional PYOWSS. Background Report (Washington, DC: National districts, but also to create wholly new categories Water Commission, 1972), p. 2. of speciaiwater districts to serve larger geographic areas and f&ii a variety of purposes. Some- 62 Krieger and Banks, p. 66. times these new districts overlay in whole or in 63 Michael MalIery, “Groundwater: A CaII for a Compre- part existing districts (as weii as other water sup- hensive Groundwater Management Program,” Pacific ply entities), creating multiple layers of special Law Journal 14 (July 1983): 1290. water districts and a patchwork of water supply bl Ibid. authority in the same geographical area. 66 Krieger and Banks, p. 66. *I Schiiling et al., p. 135. 66 Thompson, p, 123. * Tim DeYoung, “Discretion Versus Accountability: The Case of Special Water Districts,” in Corbridge, ed., p. 34. 67 As Zachary Smith has pointed out, resolution of water disputes in legislative forums wiii favor groups with the as David Jaquette, Ejficient Water Usein California: Conjunc- resources and skilIs for success at lobbying legislators tive Management of Ground and Surface Reservoirs (Santa who are motivated primarily by reelection, while resolu- Monica: RAND Corporation, 1978), p. 3. tion of water disputes in administrative forums wilI fa- 44 James Corbridge, “An Overview of the SpeciaI Water vor those with resources useful for dealing with bureau- Districts Workshop,” in Corbridge, ed., p. 5. cracies. Similarly, resolution of water disputes in judicial forums wiII favor those with resources and&i& for suc- 45 In California, which has by far the highest number and cess at adjudication. Zachary Smith, me Policy Envi- percentages of water supply and management services ronment” in Zachary Smith, ed., Wafer and the Future of performed by special water districts, a telephone survey the Southwest (Albuquerque: University of New Mexico of a stratified random sample of registeredvoters in 1978 Press, 1989), p. 15. asked them to rate the performance of their water supplier as excellent, good, only fair, or poor Three- 68 National Water Commission, Water Policiesfor the Future: fourths responded “good” or “excellent.” A later survey Final Report to the President and to fhe Congress ofthe United conducted by the Association of California Water Agen- States (Port Washington, New York: Water Information cies focusing on respondents served by special water dis- Center, 1973), p. 232. tricts showed slightly higher levels of satisfaction, but 69 Lipson, p. 20. must be regarded with some reluctance in light of the 70 Thompson, p, 32. fact that the latter survey was conducted by members of the association. CharlesHobbs,IIre WaferDistricfsofCali- n Ibid, p. 19. fornia (Sacramento: Association of California Water * Ibid, p. 23. Agencies, 1979), p. 25. n tipson, pp. 10-11. 46 This criticism is addressed to particular identifiedspecial 74 Krieger and Banks, p. 69. water districts in the San Joaquin Valley in Merrill Good- all and John D. Sullivan, Water System Entities in CaIi- 75 Susan M. Trager, “Emerging Forums for Groundwater fornia: Social and Environmental Effects,” in Corbridge, Dispute Resolution in California: A Glimpse at the Sec- ed., pp. 71-102. ond Generation of Groundwater Issues and How Agen- cies Work towards Problem Resolution,” Pacijic LawJour- 47 Institute of Public Administration, pp. 4-5. nal20 (October 1988): 58. * Ibid 76 Ibid., p. 52. 49 Wade Milier Associates, p. 97. R Ibid., p. 53. sa Ibid., p. 92. 76 JamesTB.Tripp andAdamB.Jaffe,‘TreventingGround- water Pollution: Towards a Coordinated Strategy to Pro- 51 Richardson et al., “Gypsum Blocks TelI a Water Tale’,” tect Critical Recharge Zones,” Harvard Environmental Journal of Soil and Water Conservation 44 (1989): 195. Law Review 3 (January 1979): No. 1, pp. 41-42. 52 L.M. Hartman, “Economics and Ground-Water Devel- 79 National Research Council, Committee on Ground Wa- opment,” Ground Water 3 (April 1965): 7. ter Quality Protection, Ground Water Qualify Protection: 53 Wade Milier Associates, p. 18. State and Local Strategies (Washington, DC: National Academy Press, 1986), p. 53; Metropolitan Dade County 54 Wade Milier Associates, p. 22. Department of Environmental Resources Management, ss Ibid., p. 142. State of the Environment, 1987-88 (Miami, 1988), pp. 2-6. 56 From the State Capitals: Water Supply 43 (January 1989): 3. ffl National Research Council, p. 52.

U.S. Advisory Commission on Intergovernmental Relations 75 ‘* Ibid. lo7 Alabama Florida, Hawaii, Illinois, Indiana, Iowa, Maine, 82 Ibid., p. 78. Marylanb, Massachusetts, Minnesota, New Jersey, New York, North Carolina, Rhode Island, Vermont, Virginia, 83 Ibid. Washington, Wisconsin, and Wyoming have developed 84 Nancy Humphrey and Christopher WaIker, Innovatiae new laws, regulations, strategies, agencies, or coordina- State Approaches to Community Wafer Supply Problems tion procedures for groundwater quality protection (Washington, DC: The Urban Institute, 1985) p. 6. during the last decade. Several other states began even earlier, and others have enacted legislation within this 85 Wade MiUer Associates, p. 10. decade directed specifically toward agricuIturaI chemi- 86 Humphrey and Waker, pp. 49-52. cal use or underground storage tanks. s7 See especially R. Steven Brown, “Environmental and lo8 National Research Council, p, 9. Natural Resource Problems: The Role of the States,” ?%e ‘09 Ibid., p. 127. Book offhe States, 1986-87 Edition (Lexington, Kentucky: no Humphrey and Waker, p. 6. Council of State Governments, 1986), pp. 401-419. 11* Schmandt et al., p. vii. ea National Research Council, p. 2. 112 Robert Ehrhardt and Stephen Lemont, Institutional AY- sg WiIIiam Cox, ‘Water Law Primer,“ASCE~ournal of Wafer rangemenfs for lnfrastfife Groundwofer h$nnngement: A Resources Planning and Management 108 (March 1982): Comparative Assessment Using Virginia as a Case Sfudy 118; also George, p. 236. (Arlington, Virginia: JBF Scientific Corporation, 1979), 9o U.S. General Accounting Office, Groundwafer Qulify: pp. 23-24. State Activities to Guard against Confaminanfs (Washiig- 113 Schmandt et al., p. 202. ton, DC, 1988), p. 3. ‘14NeiI S. Grigg, *Appendix: Groundwater Systems,” in 91 Ibid., p. 4. Kyle SchiIIing et al., 7he Nation’s Public Works: Report on Water Resollrces (Washington, DC: National Council on 92 National Water Commission, p, 244. Public Works Improvement, 1987), p. B-3. 93 Henry C. Hart, “Toward a Political Science of Water Re- 1’S With respect to groundwater quality protection, this sources Decisions,” in L. Douglas James, ed., Man and WR- represents activity in addition to the adoption of under- &(E7ington: University Press of Kentucky, 1974), pp. ground storage tank legislation or regulations (which - . nearly all states adopted), or the development and sub- 94 SchiIIinget al., p. 133; David HoweIIs and James Warman, mission of state groundwater quality protection strate- “Groundwater Management in the Southeast,” ASCE gies under EPA’s Section 106 program (which also was Journal of Wafer Resources Planning and Management 108 done by nearly aII states). Wiiiam Blomquist, “Exploring (October 1982): 325. State Differences in Groundwater Laws and Policy Inno- vations, 1980-1989,” Publius - The Journal of Federalism 21 95 National Research Council, p. 46. (Spring 1991): 101-115. 96 Ibid.; Robert Melvin, Hugo Thomas, and Robert Moore, 116 Testimony of Roberta Savage on H.R. 2253 and H.R. 791 “Cooperative Efforts in Ground-Water Protection-A before the Subcommittee on Natural Resources, Agri- Connecticut History,” U.S. GeoZogicul Survey Yearbook culture Research, and Environment, Committee on Sci- 1987 (Washington, DC: US. Geological Survey, 1988), p. ence, Space, andTechnology, U.S. House of Representa- 8. tives, 100th Congress, First Session, p. 244. 97 National Research Council, p, 46. 11’ U.S. Environmental Protection Agency, Survey of State Ground Water Quality Protection Legislation Enactedfrom 98 Melvin et al., p. 11. 298.5 through 1987 (Washington, DC, 1988), p. vii. 99 Ibid., p. 8. 118 U.S. General Accounting Office, Groundwafer Qu~~lity, p. loo Ibid., p. 15. 5. lo1 Schmandt et al., p. 41. n9 Wade MiIIer Associates, p. 10. loL Ibid. l”) Ibid, pp. 9-10. lzl Frank J. Trelease, “States’ Rights Versus National Powers lo3 Testimony of Wesley Steiner and Kathleen Ferris before for Water Development,” in Ernest Engelbert, ed., the Subcommittee on Water and Power Resources, Com- Strnf- egiesfor Western Regional Wafer Development (Los Angeles: mittee onlnterior andInsular Affairs, U.S. House of Rep- Western Interstate Water Conference, 1966), p. 107. resentatives, 1OOth Congress, First Session, on H.R. 2320. Series 100-23, Part 1, pp. 87-88. lzz NorrisHundIey, Wrrterand the West (Berkeley:University of California Press, 1975), p. 64. lo4 Schmandt et al., p. 42; presentation by Ronald MiIIer, Ari- zona Office of Waste and Water Quality Management, in I23 Schmandt et al., p. 25. 7’he States’ Groundwater Management Conference, Associ- m United States Geological Survey, Water-Data Program. ationof State andInterstate Water Pollution ControlAd- Water Fact Sheet (Reston, Virginia, 1984). ministrators, November 1986, San Diego, p. 3. lz5 HoweIIs and Warman, p. 321. lo5 National Research Council, p. 83. lz6 David Moreau, “New Federalism and Social and Envi- lo6 Prospects for greater coordination of groundwater sup- ronmental Goals,“Journ~Z of Water Resources Planningand ply management and quality protection functions are Management 115 (January 1989): p. 28. explored in Susanna Eden, Integrated Water Mnnagemenf lnWayne SoIIey, Charles Merk, and Robert Pierce, Esfi- in Arkona (Tucson: University of Arizona, Water Re- mated Useof Wafer in the United Stntes, 2985 (Washington, sources Research Center, 1990). DC: U.S. Geological Survey, 1988), p. 3.

76 U.S. Advisory Commission on Intergovernmental Relations 128 David Jaquette and Nancy Moore, 147 U.S. General Accounting Office, Groundwater Protection: Efficient w&r Use in ‘Tk Use of Drinking Water Standards by the States (wash- California: Groundwater Use and Management @antaM* nica: RAND Corporation, 1978), p. 32. ington, DC, 1988), p. 3. lzg Schmandt et al., p. 25. la Ibid., pp. 2-3. 130 Schiing et al., p. 116. 14g Ibid., p. 5. 131 U.S. Office of Science and Technology Policy, FederaI 150 Wade Miller Associates, p. 84. Ground-Water Science and Technology Programs (Washing- lsl Ibid., p. 205. ton, DC, June 1989). ls2 George, p. 235; Zachary Smith, “Federal Intervention in 132 Ibid., p. i. the Management of Groundwater Resources: Past Ef- 133 James H. Jensen, “Governmental Responsibilities for forts and Future Prospects,” Publilts - 7heJoumniof Eeder- Water Development,” in Engelbert, ed, p. 116. aiism 15 (Winter 1985): 1.51; Environmental and Enerm 134 Viessman and Welty, pp. 30-31. Study I&itute,A Con$ressionalAgenda to Prevent Grou& water Contamination: Building Capacity to Meet Protection I35 Jaquette and Moore, p. 32. Needs (Washington, DC, 1986), p. 1. 1X Viessman and Welty, p. 31. 153 Smith, p. 151; National Research Council, p. 3. 137 Henry I? Caulfield, “The Future of Local Water Districts ‘%U.S. Environmental Protection Agency, Office of and Agencies in Historical, Political Context,” in Cor- Ground-Water Protection, Ground-Water Protection bridge, ed., pp. 104-106. Strategy (Washington, DC, 1984), p. 3. 138 Viessman and Welty, pp. 38-39; PaulTaylor, “The 160-Acre ls5 Ibid., p. 4. Law,” in David SeckIer, ed, California Water: A Study in Resource Management (Berkeley: University of California ls6 Viessman and Welty, p. 2; William Lord, “Conflict in Fed- Press, 197l), p. 251. eral Water Resources Planning,” Water Resources Bulletin 15 (October 1979): 1224%. 13’ Schiiing et aL, p. 8. ls7 Viessman and Welty, pp. 41-53. ‘40 Wiiiam Cox and William Waker, “Ground-Water Impli- cations of Recent Federal Law,” Ground Water 11 (Sep- ss Ibid, p. 7. tember-October 1973): 15. 159 SchiIIing et al., p. 130. 141 Robbi Savage, “National Clean Water Act Program 160 Grigg, p. B-3. Turned Into State Revolving Loan Funds,” County News 19 (August 17, 1987): 16; Anthony J. Celebrezze, Jr., M Ibid.; also Schiing et al., p. ix. “Ohio’s Required Enforcement of the clean Water Act,” I8 See, for example, Schmandt et al., p. 2: 36 (February 1988): 8. Cities and VUZages Whereas the federal government was a ma- 142 Savage, p. 18. jor player when water development projects 143 Ibid., p. 16. were the preferred approach to water management, now that the emphasis has changed from 144 “NACD Announces Water Quality Strategy,” Journal of development to better management of existing Soil and Water Conservation 44 (May-June 1989): 217. resources, its role is declining, and state govern- 145 Wade MiIIer Associates, p. 204. ments are assuming a more active role. 146 Ibid., pp. 5 and 205. I63 Smith, p. 146.

U.S. Advisory Commission on Intergovernmental Relations 77 78 U.S. Advisory Commission on Intergovernmental Relations Chapter 5 i Water Resource Management: ! Problems and Barriers

Despite the initiatives described in Chapters 3 than can meet all needs and desires, the problem is and 4, there still are important institutional barriers to perceived to be that laws and institutions have effective coordination of surface and groundwater perpetuated a false sense of water abundance As one supplies having to do with the rules governing author stated, water laws and institutions have “main- allocation,valuation, and information It is possible to tained the ‘water-rich’ illusions of this country” when in “create a crisis” through the application of inappro fact the “challenge of the future will be learning to live priate rules: “When institutional mechanisms do not with less”5 The proper course for institutional reform, reflect reality a crisis o~curs.“~ Recognition of this fact then, is to curtail use so as to balance the limited has led to calls for more “institutional analysis” of available supply with aggregate demand water resource management and for institutional As the objectives of water resource management reform.2 However, as others have pointed out, “insti- have shifted from development to the more effective tutional analysis” is easier said than done,3 and management of existing supplies, part of the difficul- “institutional reform” is no simpler than designing ty is that “we have inherited a structure of politics, institutions originally (indeed, it is likely to be tough- organizations and intergovernmental relations which er, as problems of design are compounded by inertia). is derived from the initial objective” of water develop- Moreover, important and useful recommendations ment6 In the words of the director of Arizona’s Water for institutional reform that have been offered have Resources Research Center, our generally been ignored! Acceptance of the idea that institutional arrange- society is, and has long been, a technologically ments and physical realities in the water resources oriented one. We have been successful in field are mismatched is not enough; there must be an technological innovation and we have come I understanding of how they are mismatched if reform to look first for the ‘technological fix’ when is to make the situation better There appear to be three we confront a new problem. At the same broad views of the nature of the mismatch: time, we are institutionally backward. We 11, shrink from institutional change, except as a 1) Water supplies are insufficient, and institu- last resort . . . In our own field of water re- tional arrangements fail to force us to con- sources management there are abundant serve those supplies and obvious examples of the tendency to re- 2) Institutional arrangements of the past are in- sort to extravagant and unwarranted techno- adequate, and their continued use is the logical solutions. Massive reservoirs, contro- I cause of the problem. versial water transfers, costly desalination, and uncertain weather modification schemes I 3) The principal problem with the institutional arrangements is that they distort the valua- are all examples of a resort to technology to tion of water supplies, making it difficult to solve problems which are more easily and know whether supplies are sufficient be- cheaply addmssed by institutional innovation, cause users have several incentives to mis- Indeed, most of these ‘solutions’ are aimed at state preferences for water and virtually no problems which exist only because we have incentives to be accurate. failed to modify institutions which were responsive to problems of an earlier day, but When the water situation is described as if the which have long since been rendered obsolete supply were a fixed and limited known quantity, less by changing conditions’

U.S. Advisory Commission on Intergovernmental Relations 79 The problem is not merely that our water laws and rights laws absolute ownership, reasonable use, institutions are old, but the arrangements that were correlative rights, and appropriation. beneficial for water development may have detrimen- Some laws follow old common-law property rules tal results when the purpose of management has and confer absolute ownership of groundwater on the changed to efficient and equitable allocation of riparian or overlying landowner The absolute owner- supplies. The laws and institutions governingalloca- ship doctrine places no restriction on the amount of tion have distorted users’ sense of the value of water water withdrawn or on its place of use (the owner may supplies Therefore, it is virtually impossible to draw export the water). Such a system provides no quantifica- simple conclusions, such as “water demand equals x tion of an owner’s right to the use of waterll and water supply equals x,and y is greaterthan x.” We Under this system, an owner of water rights is operate in an institutional environment in which unrestricted in withdrawing water and is protected users’ claims are undefined, rights to use groundwa- by law in doing so. Water users bear only their own costs ter basins for storage are undefined, barriers exist to of withdrawal. There are no charges for use of the water being transferred from one user to another or common supply or for losses imposed on fellow user5 reclaimed by a user who employs water conserva- The absolute ownership system creates incen- tively, and some persons pay unnecessarily high taxes tives for overlying owners to produce as much water or electrical power rates so others can have water as desired given the production cost, and creates no supplied at prices less than the cost of production. incentive to conserve water or make sure that it is not Under those circumstances, making any claims about wasted. The system also renders management of the the relationship between the demand for water and the common supply highly problematic because there is supply is a dubious exercise. no quantification of users’rights and no legal basis for What remains to be done is some real institution- restraining use. It is a system that promotes overuse. al analysis. Past analyses have usually treated water The absolute ownership doctrine is a recipe for water laws and institutions as fixed elements, and predicted shortages in any area that is not blessed with an crises based on projections of supply and demand abundance of water that were also deemed unchangeable.8 Institutional Because water is not unlimited in most of the analysis treats water laws and institutions as vari- country, most states have moved away from the ables, subject to change, and then inquires as to the principle of absolute ownership. Many states possible effects of changed laws and institutions on adopted a policy that limited withdrawal rights to the relationship between supply and demand? Thus, those amounts that could be applied to a “reasonable while we acknowledge that it may be possible to use” or a “beneficial use” on the owner’s land.12 The “create a water crisis” through poorly adapted institu- reasonable use doctrine also takes away the entitle- tional arrangements, we must acknowledge that it may ment to export the water: The prohibition against be possible to avert or lessen the likelihood of a water groundwater withdrawals for any “unreasonable” or crisis through appropriate institutional adaptations “nonbeneficial” use has been essentially meaningless in What, then, are the barriers to more effective practice, as virtually any use on an owner’s overlying conjunctive management of gmundwater supplies? land has been construed to be reasonable or beneficial They are the institutional factors that distort decision- Under the reasonable use doctrine, rights to making in such a way that the adoIs in the complex water withdrawals remain unquantified and essen- water economy respond to incentives and constraints tially unlimited. For instance, there is nothing to by “creating a water crisis” or simply by failing to take prohibit an owner from withdrawing groundwaterto full advantage of available resources These institution- the detriment of a neighbor as long as the water al factors include lack of definition and transferability of withdrawn is put to a “reasonable” or “beneficial” production and storage rights, distortions created by ~se.‘~ There also is no mechanism for taking into water subsidies, and lack of information distribution.*0 account the costs one pumper imposes on others. As with the absolute ownership rule, the only costs for the owner are the production costs L ACK OF DEFINITION AND TRANSFERABILITY The reasonable use doctrine creates incentives OF PRODUCTION AND STORAGE RIGHTS for users to use as much water as they desire given their production costs, and no incentives to conserve State Water Rights Laws water or avoid waste. The lack of quantification of water rights also poses obstacles to conjunctive State laws govern rights to the use of groundwa- management. Any possible schemes for limiting ter and water resources generally Some states tie withdrawals, inducing users to take water from those rights to the ownership of land; others tie the alternative sources, or in any other way controlling rights to actual water use. Although the laws vary in overdraft are unlikely to succeed in such a legal their details, there are four general categories of water environment Water shortages and conflicts are likely.

80 U.S. Advisory Commission on Intergovernmental Relations Neither the absolute ownership nor the reason- the appropriator will put the water to a “beneficial able use doctrine takes into account the interdepen- use.” In times of shortage, however, there must be dence of the users of a common water supply. The some allocation of obligations to reduce withdrawals. doctrine of “correlative rights,” while still tying Thus, the pure appropriation doctrine employs a groundwater withdrawal rights to ownership of Shpk rule of seniority: “first in time, first in right" overlying land, was adopted by a few states in an Junior appropriators must yield to senior appropria- attempt to redress this shortcoming. Under the corn+ tors during times when there is not enough water to alive rights rule, overlying ownem share the common satisfy all claims. Some states have added other supply in proportion to their ownership of the restraints to this rule, classifying uses by priority in overlying land.14 However, this is a rule that acquim times of reduction of withdrawals. To keep track ofthe “bite” only after a shortage has occurred, when a amounts of water to which holders of appropriative determination of the amount of water available in a rights are entitled, and the priority (i.e., seniority) of groundwater basin is made and that amount is those rights, states typically have issued permi& to apportioned among the owners. pump or dhwters (by a state engineer, for examp\e\. The correlative rights rule, which reached its One desirable feature of the appropriation dot- greatest development in California and Florida, tine was that it quantified rights. This makes possible suffers from problems similar to absolute ownership some beginning steps toward effective management, and reasonable use. First, the rule also leaves ground- In a groundwater basin, it is possible to know at a water rights unquantified, which presents obstacles given time in a given groundwater basin the maxi- to conjunctive management (except in Oklahoma, mum amount of legal pumping. It is also possible to where the state Water Resources Board is directed by limit the amount; if the office that issues appropri- statute to survey each basin, make a determination of ation permits is aware of the total available water its maximum annual yield, and allocate a share ofthat yield of the basin, the off ice can stop issuing permits yield to each acre of overlying land, thus giving each when there is no more “surplus” water available. overlying landowner a quantified right to a specific And, as noted above, the appropriation doctrine amdunt of groundwater15). comes with a rule for allocating water in times of Second, like the absolute ownership and reason- shortage-junior appropriators cut back first able use doctrines, the correlative rights rule ties The appropriation doctrine, with its priority acquisition of groundwater rights to ownership of principle, also encouraged the development of west- overlying land. In fact, it makes that tie even closer by em lands by offering secure water rights to those who apportioning the water proportionately with land put the water to ~se.1~ Water rights were not tied to ownership. The main problem this presents is that a land ownenhip, so a landowner could not “sleep on water purveyos whether a private company or a his rights” The telationship between the appropri- public agency,may own a relatively small share of the ation system for the acquisition of groundwater rights land overlying a groundwater supply but may re- and the development of regions, however, is a vehicle that is all accelerator and no brake. Appropriation law quire significant quantities of water in order to serve has combined with other economic and political its customers or residenti and may value that water pressures to promote the premature overdevelop- more highly than other owners of more extensive ment of land and other resources.” land areas. Nevertheless, doctrines that tie water In an area where there may not be enough water rights to land ownership -especially the reasonable to satisfy all claims (i.e., where water is “scarce” in the use doctrine and the correlative rights doctrine-may economic sense), anyone who waits to use water until not provide for such needs, and water may not be it is genuinely needed for some profitable purpose avai\able for higher valued uses, both of which result may find that all available water has been appro- in inefficiency and inequity. pfiated OT thatthe remaining appropriative right that The allocation of water has been addressed in can& acquired is so junior as to stand highly exposed most of the western states, where water is generally to any period of shortage. Water is to be put to a less naturally abundant, through the adoption of a “benefiCial use; but reserving water for future use does system of appropriative rights. Under an awor-+ not so qualify under most appropriation laws There- ation system, users acquire rights to specific quanti- fore, “fist in time, first in right” becomes “get it now, ties of water based on actual use rather than on land wh&er you need it or not” Each entity mceS against all ownership. Water can be diverted for use out of the &a “to establish use rights ahead of need.“” The stream and on nonadjacent lands (in the case of mult an be almost comic water waste: industrial surface waters) or on nonoverlying lands (in the case enterp& in desert a=% grow fields of alfalfa hay witi irrigation water in order the preserve their fight to of underground waters). he water if they need it for future expansion. Rights to the use of water under appropriation Once begun, the process feeds on itself Any systems can be acquired as long as “surplus” (i.e., not entity - from individual farmer to metropolis -seek- already appropriated) waters remain, and as long as

U.S. Advisory Commission on Intergovernmental Relations 81 ing water to appropriate as “surplus” induces others Those engaged in agriculture under an appropriative to try to be sure that they do not lose out. The only way rights system may be perfectly rational, responding to to be sure that water for future use is not defined as almost perfectly irrational incentives If an individual’s present “surplus” and lost is to put that water to use.i9 right to use a specified amount of water is based on the Moreover, in some states, unused water rights may be amount of water diverted or withdrawn, and if acquir- lost by adverse use or prescription. Thus, “first in time, ing the right costs virtually nothing (usually there is a first in right!’ becomes”use it or lose it.” Both offensive filing fee for a pen&but the cost of the water right does and defensive strategies under pure appropriation not vary with the amount), given some uncertainty law work toward the same end: the premature and about the future, the understandable response is to stake excessive exploitation of water resources a claim to as large a water right as feasible by diverting Under the appropriation system, individual incen- or withdrawing and using as much as possible. That is tives are placed in opposition to collective goals And not being “wasteful”; under the circumstances- and collective efforts, instead of being directed toward given the incentives-it is being prudent reshaping the legal institutions that create this incom- Water rights laws that provide for the acquisition patibility, are dim&d at trying to fix its effects: of rights to groundwater based either on ownership of overlying land or on actual use at a specific place At a time when real competition for scarce and for a specified purpose encourage inefficient water supplies is forcing conservation poli- use?2 Production rights are either undefined, defined cies,weathermodification,desalination,and but connected to land ownership, or defined in such a expensive transbasin diversion projects way as to encourage maximum use and minimum upon some water users, it is unthinkable that conservation. Although the appropriation system does state water laws should be simultaneously at least provide for specific and quantified water rights, encouraging other water users to use as it does so in a way that leaves claimed water rights much as possible and speculators to claim bearing only a questionable relation to needed water now water rights in the hope of somedaybe- rights Without modifications, each of these water rights coming rich by so doing.. . . z” systems constitutes a barrier to more effective conjunctive management of water supplies Regardless of how “unthinkable” it may seem, these perverse incentives are created by water rights Legal Separation laws that reward users who employ as much water as of Surface and Groundwater Rights fast as possible, and penalize those who wait and those who reduce their use. Water “shortages” that Although we have become increasingly knowl- appear under such situations are often attributed to edgeable about hydrologic interrelationships between natural conditions (the notion that “there simply isn’t groundwater and surface water in stream-aquifer enough water to go around”) or to wasteful water systems, water rights laws often do not recognize the users, as though their wastefulness were a personality connection. In many states, there is a distinction trait rather than a response to a system of water law between the laws governing groundwater rights and that seems to be designed to eliminate surplus waters surface water rights, even where the two sources are wherever and whenever they are found. physically interconnected. The extent of the differ- Because the use of water in irrigated agriculture, ence between the two systems of rights varies from and especially in the appropriation states, is often state to state.23 singled out for attention, the point should be made Separate legal systems governing the acquisi- that these water rights laws encourage waste and tion, retention, and transfer of rights to surface water discourage conservation, the opposite of our collec- and groundwater in stream-aquifer systems where tive goals Irrigated agriculture accounts for approxi- the two sources are physically interrelated “impose mately 90 percent of water consumption in the western an added difficulty forwater managers.“x Separation states Since farming and ranching are among the oldest can leave appropriators of the two sources “on a activities in the developed West, irrigated agriculture collision course.“25 Groundwater appropriators may also holds most of the senior appmpnative rights in the have perfected senior appropriative rights to pump western states that use that system As demands for from an aquifer that is hydrologically connected to a urban uses have grown in the West, and as urban water stream system wherein surface water diverters have managers have viewed the water rights of farmers perfected senior appropriative rights to that water jealously, the use of terms such as “waste” has become In these cases,which are not rare,the law protects part of the political battle over entitlement, fueling both appropriators absolutely; yet, pumping ground- animosities between farmen and city dwelleIs21 water reduces the surface stream flow, or diverting Yet there is no reason to believe that western surface water reduces the water available to the farmers are somehow “wasteful” or that irrigated groundwater aquifer While it is one thing to say that agriculture must necessarily be a “wasteful” practice. such conflicts could be resolved as would other

82 U.S. Advisory Commission on Intergovernmental Relations conflicts between users of a common resource-i.e., ture discourages systematic conjunctive manage- through some adjudicative or administrative pmcess- ment31 Moreover, other aspects of state laws and it is another thing altogether to have such conflicts policies governing groundwater and surface water created needlessly by the failure to adjust water rights rights and basin management may impede effective laws to reflect known characteristics of the supply those conjunctive management laws are supposed to allocate and govern Water rights may be undefined for entities wish- An example of the problems this can create can be ing to undertake artificial recharge of groundwater seen in the recent experience of the Platte River in supplies in order to capture temporary water sur- Nebraska. Nebraska has a “reasonable use” doctrine for pluses for later use. First, the right to use surface water the allocation of groundwater and an appropriation supplies for recharge must be assured. Under the system for surface water As thousands of wells have appropriation doctrine, diverting and capturing sur- been drilled and put to use, some of those have pumped face waters for use at some later time may not qualify water that would have contributed to the flow of the as a “reasonable” or a “beneficial” use. Appropriation Platte River, and flows in the river have declined. rules often stipulate that the water diverted must be Towns, irrigation companies, and districts with appro- put to beneficial use within a certain period or the priation permits along the river have faced reductions in stream flows, from which they can claim a right to be right to its use is forfeited. This places in question the pm&ted. On the other hand, groundwater pumpers rights to store water that might not be recaptured and can argue that they have invested in wells and drilling used for years 32 While most western states have equipment and have put the water to a masonable use, modified their procedures to recognize groundwater and therefore have an equally unassailable right to recharge as a qualifying “beneficial use,” other states the water they use. Nebraska law does not provide a do not make this definition explicit way of making these users’ rights fungible so that Rights to store and recapture water supplies water supplies can be allocated among them when underground also depend on the availability of shortages occur Similar problems have appeared in storage capacity Rights to the use of the storage other river basins” capacity in an underground basin often are not Some states in the West have attempted to bridge defined in state laws, which were likely devised to the legal separation of connected waters. In Colorado, address rights to production. As a result, any private separate legal treatment is given to groundwater that operator or public entity attempting to use an under- is tributary to surface water, and this groundwater is ground basin for storage runs some exposure of being subject to the laws governing the use of the surface unable to sustain a subsequent claim to the storage water to which it contributes?7 This allows at least a space; this discourages such use of a basin before the chance for conjunctive management in a basin fact On the other hand, assuring a right to use where the two sources are interrelated by unifying underground storage space provides an incentive to the priorities of the appropriative rights. In the 13 capture, store, and recapture waters and to alternate western states that apply the doctrine of prior appropriation, six apply a single appropriation system to between water sources hydrologically connected surface water and ground- Of course, for there to be storage space to use, water, and five provide by a separate statute for the there must be space available. Optimal basin man- integration of rights where surface and underground agement may require lowering underground water waters are connected. In two states, the courts have tables in order to increase the effectiveness of the upheld actions of the state engineer (as in New basin in capturing flows for recharge when surplus Mexico) in administering rights to the joint use of waters are available.33 As noted in Chapter 3, in states connected surface and underground water? where “safe yield” operation of groundwater basins States attempting to consolidate water rights after a is mandated, there will be a conflict between having stream system has been “fully appropriated” have faced available underground storage capacity and comply- a political problem of some intensity when the priorities ing with the “safe yield” requirementM “Safe yield” of rights of groundwater pumpers come up against the policies affect planning of surface water reservoirs older rights of surface water diverters% Nevertheless, and distribution systems because underground stor- failure to integrate the two sets of rights makes cootdi- age capacity cannot be figured into plans for convey- nated use quite difficult State water rights laws need “to ance, storage, and distribution of surface water sup- respond to a realistic view of the physical occurrence plies, resulting in overinvestment in above-ground and distribution of ground water including the interre- facilities This inefficiency hampered the State Water lationship between ground and surface water”= Project in California, which was planned when “safe yield” was the prevailing requirement for managing Rights to Store and Recapture Water groundwater supplies.35 Where groundwater and surface water rights are Lack of definition of rights to the storage of water separated but the supplies are physically connected, in underground basins and to its subsequent recap- legal protection afforded to surface water rights may

U.S. Advisory Commission on Intergovernmental Relations 83 require keeping a contributing groundwater basin as comprehensive environmental responsibility to local full as possible. This would have the same effect as a governments.“41 “safe yield” requirement in presenting an obstacle to As long ago as 1973, the National Water Commis- effective basin management.% sion recognized that local management authorities The right to recapture the stored water requires should have the following capacities in order to that the storing entity also be entitled to pump the undertake effective conjunctive management efforts: water from underground. Priorities may have to be 4 To issue revenue bonds and to levy pump established for the retrieval of stored water during taxes and diversion charges; periods of shortage.n Procedures are needed to ac- b) To acquire water, water rights, and real proper- count for the water stored and the right to remove it ty for the development and use of facilities for In the groundwater basins in the Southwest, where water storage, recapture, and conveyance; effective conjunctive use has been developed, this typically has been facilitated by the appointment of a c) To buy and sell water and water rights,and to “watermaster” or the acceptance of these accounting export water from the area when it is eco- duties by the office of the state engineer nomically beneficial to do so; Finally, consideration should be given to two 4 To store water in surface reservoirs or under- related issues. First, the interests of overlying land- ground, to extract water, and to reclaim and owners should be protected from any unreasonable treat water; harm from raising and lowering underground water e) To represent all landowners and water rights levels as part of a conjunctive management program. owners in legal actions to protect water rights Any entity storing water should assume some liability and water quality within its jurisdiction. and the overlying landowners should receive some These powers, according to the commission, were compensation if their pumping lifts are unreason- vital in order that any locally based water manage- ably lengthened or if the quality of their water supply ment institution “be able to perform comprehensive is affected adversely? Second, communities contem- management functions within its jurisdiction.“” plating conjunctive management of groundwater The commission also acknowledged that few and surface water supplies should do some planning states were willing to give such a range of powers to to ensure that potential recharge areas overlying water management agencies. Even powers to impose aquifers in which they may wish to store water are pump taxes and diversion charges have been granted not developed beforehand. One potential institution- reluctantly at best, though these powers are “vital if al mechanism for addressing both of these issues is the agency is to be able. to enforce rational choices the idea of “water zoning” ordinances that set aside between surface and ground water use when both are recharge areas and condition development in areas available and physically accessible to ~sers.“~ Imple- overlying an aquifer that will be used for water menting effective institutional arrangements for con- storage on recognition of the likely variability of junctive management requires the ability to manipu- water levels in that area.39 late user charges to increase the compatibility of In all, a legal structure “has to be developed individual incentives and collective goals. which permits raising and lowering of water levels, Problems of Unspecified and Latent Rights defines the authority to use empty storage space, defines individual rights, provides for physical solutions when individual rights conflict with the man- Instream Flow Protection, the “Public Trust” Doc- trine, and Land Based Water Rights. Unspecified agement plan, and protects individuals from the economic inequities which may be created locally”40 and poorly quantified rights give rise to considerable Institutional arrangements that fail to provide for uncertainty on the part of water rights holders and managers Similar problems are created by legal doc- these elements of conjunctive management present continuing barriers to more effective utilization of trines that leave vague and unspecified “latent” rights in the system that might at some subsequent groundwater supplies. date be activated and used. Even a specified, quantified permit to appropriate water, duly acquired under Authority for Conjunctive state laws and procedures, is of dubious value if it is Management Agencies not binding on subsequent uses.& Unspecified rights and reservations that impede more effective manage- One of the most serious and persistent obstacles ment arise from four sources: protection of instream to effective conjunctive management is the absence flows; the emergence of the “public trust” doctrine; of local or basinwide authorities that could effectively water rights tied to land ownership; and the doctrine represent water users. Organizing for groundwater of “reserved rights.” management locally has been impeded by the fact Protecting instream flows (for scenic, wildlife, that “states have historically been slow to turn over navigation, recreational, and other purposes) is not

84 U.S. Advisory Commission on Intergovernmental Relations normally conceived as a problem of managing compensation for the losses imposed on holders of groundwater supplies, but, as we have seen, ground- other rights generally presents a barrier to more water supplies frequently contribute to the base flows of effective conjunctive management In states that link surface streams with which they are physically inter- the acquisition of water rights to ownership of connected. In such cases, actions by the state to protect overlying lands, this problem of the “latent” right can instream flows may affect the amount of withdrawals affect even the most apparently complete and stable from a groundwater basin. Here, again, the difficulties management plans. Even after a long and complex encountered may be less physical than institutional. adjudication of the rights to native groundwaters, States that do not connect their groundwater and imported stored waters, and return flows in Califor- surface water rights systems are poorly positioned to nia’s San Fernando Valley, forexample, the California establish reasonable trade-offs for the protection of Supreme Court indicated in its opinion that land- instream flows. Maintenance of undiverted water owners in the valley who were not exercising their flows downstream has been especially difficult in rights to the use of the groundwater beneath their appropriation states that require diversion and use of lands at the time of the entry of the judgment could water Yet, governmental action after the fact to try to still initiate production of groundwater for reason- restore instream flows disrupts the production rights able use on their overlying lands. The exe&e of this of users who acquired them in good faith under the “latent” right could thus “upset the apple caf151 and rules of their day, and requires the owners to relin- reduce or infringe on the tights of the parties to the quish the rights for another purpose without com- adjudication, simply because California water rights pensation. Perhaps most importantly, endless specu- law continues to give unquantified rights to the use of lation about possible impending governmental underlying groundwater to anyone who owns land action to protect instream flows has a chilling effect Effective basin management planning requires that, at on efforts to manage water supplies” some point, them be an end to the expansion of The “public trust” doctrine has been employed pumping rights within the basin recently to protect instream flows. The doctrine originated in the Tudor period in England% to convey Federal Reserved Water Rights. Reserved rights are the limits on private rights of ownership to tidal the most extensive of the “latenr unquantified rights, lands, but has been extended to nontidal lands and to In the western states in particular, federal reserved water rights. The claim of right under the public trust water rights play an especially important role in doctrine is that some natural resources “are so intrin- impeding more effective management of groundwa- sically valuable to the public that they cannot be ter supplies. A series of decisions, beginning with owned by any persor~“~~ As a “broad mandate to Winters v. United States (1908) and reaching its zenith consider public trust values,“& the doctrine could be with the surface water diversion decision in Arizmn v. used to protect instream flows before allocating produc- Cnlifomia (1963) and the groundwater withdrawal tion and storage rights to individual ownefs On the decision in C~ppuertv. United States (1976),established other hand, recent litigation has attempted to employ reserved water rights of the federal government the public trust doctrine after the allocation and exercise These reserved rights are superior to the water rights of rights in order to subsequently “limit or destroy the granted under state laws, which previously had been pmperty right by application of a pmviously undefined thought to govern nonnavigable water resources superior claim with no compensation for the lossn49 The concept of the reserved right is that when the When applied in this fashion, the public trust Congress acts to set aside lands for a federal reserva- doctrine becomes another source of uncertainty for tion (e.g., military or Indian), it implicitly acquires the the holders of production and storage rights. This can right to use whatever waters are available and inhibit the development of complex basin manage- needed to fulfill the purposes for which the lands ment programs that involve allocation of water and were reserved. The right dates back to the time when the reservation of the land is made, and is superior to storage among competing users, the employment of any and all subsequently acquired rights.% alternative sources of watersupplytransfers of rights, Reserved rights create two problems for effec- allocation of management costs among users, and so tive basin management. First, the reserved rights on While it is unclear whether and to what extent the are often unquantified,and until they are put touse public trust doctrine will be employed to defeat by the federal government their full extent in a production and storage rights that users believed they basin can only be guessed at by the local users. This held with certainty and stability, it appears to have presents the same problems as with all other ‘almost suddenly evolved into a completely new unquantified water rights. creature that is doing things never considered possi- Second, because many federal reservations date ble when the doctrine developed.* back to the turn of the century and earlier, the rights of The emergence, or threat of emergence, of “la- the many users who complied with applicable state tent” rights that may be employed suddenly without laws would be rendered essentially worthless by the

U.S. Advisory Commission on Intergovernmental Relations 85 exercise of federal reserved water rights. Moreover, lands, but were available for municipal and industrial water withdrawn under a federal reserved right can uses, and even for transfer and exchange.59 be used without regard to state law, or even in ways that are inconsistent with or in contradiction of state Uncertainty in the Extent of State Authority: Spar- law.53 The reserved water rights have not been used hase and EZ Paso. The power of the federal govern- frequently; as a matter of federal comity, federal agen- ment to regulate the waters of navigable streams has cies have complied with state laws and administrative been settled since the early days of the Republic. The pnxedures, but there is nothing requiring them to do so. constitutional power of the federal government to As competition for water resources intensifies, the regulate groundwater supplies directly has been a temptation to employ automatic, senior reserved rights more recent question. rather than comply with state procedures for the Two principal cases in the federal courts in the acquisition of junior appropriative rights may grow. 1980s ruled on the issues of the authority of states to This expands the pumping rights in a basin, restrict the use of groundwater outside their bound- thereby upsetting any management program. It also aries. In 1982, the United States Supreme Court ruled means that the federal government has the right to on an appeal in the case of Sporhnse v. Nebmskn, and in enjoin other groundwater and surface water users’ 1983a federal districtcourtentered judgment in Cityoj rights that interfere with the availability of water for a El l3rso v. Reynolds. The two decisions have changed federal project or reservation.% the view of the constitutional power of the federal In Cnpynert, for example, also known as “the government and the states with respect to groundwa- Pupfish Case,” the United States was upheld by the ter management Supreme Court in its efforts to restrict gmundwater In Sporhnsev. Nebrasku,bo the joint owners of lands pumping by the Cappaert Ranch (pursuant to permits on both sides of the Colorado-Nebraska border granted by the state of Nevada) that were lowering the applied for a Colorado permit to appropriate groundwater level at Devil’s Hole in Death Valley National water for use on their Colorado lands. Their applica- Monument, thereby threatening the continued exis- tion was denied because the groundwater withdraw- tence of a rare species of desert pupfish.” The Cappnerf als would have constituted groundwater mining, decision appears to establish the authority of federal which is prohibited by Colorado. The landowners agencies to exercise rights to the use of groundwater and then pumped groundwater from a well located a few to prohibit other users’ exercise of groundwater pmduc- feet over on the Nebraska side and used the water on tion rights that might interfere with the federal reserved their lands in both states. water right The potential for such a decision was Under Nebraska law, a permit must be obtained viewed with alarm by western states, some of which to export groundwater from the state. One of the filed amicus curiae briefs in the Cnppnert case. Given the conditions for granting such a permit (along with the extent of federal reservations in Arizona, for example, conditions that the withdrawals be reasonable, not the state’s brief warned that interference with state contrary to the conservation or use of groundwater, or groundwater rights laws and management plans from otherwise detrimental to the public welfare) is that the the extension of federal reserved rights would wreak state to which the water is exported grants reciprocal “economic havoc” on the state.% rights to Nebraska, which Colorado does not Nebraska sought an injunction to restrain the landowners from In 1978, the Supreme Court clarified the federal exporting groundwater pumped in Nebraska to their reserved water right issue in a way that showed lands in Colorado. Nebraska prevailed in the trial court greater sensitivity to the concerns of states In United and in the state supreme court The landowners St&s v. New Mexico, the Court restricted federal re- appealed to the United States Supreme Court The case served rights to water for specific needs essential to the generated amicus curiae briefs from the states of planned use of the reserved land. The Court rejected an California, Colorado, Kansas, Missouri, Nevada, New attempt to broaden the reserved water rights of national Mexico, North Dakota, South Dakota, Utah, and Wyom- fores& to protect instream flows for fish and wildlife5’ ing as well as the City of El Paso, the Elephant Butte Indian water claims in particular present consid- Irrigation District, the National Agricultural Lands erable uncertainty for the Indian tribes and the states Center, and the National Wildlife Federation in which reservations are located. No one in the The United States Supreme Court, by a 7-2 vote, reservation states “knows how much unencumbered held for the landowners, ruling the Nebraska law water will be available until the Indian claims are unconstitutional. The principal constitutional chal- settk~L”~ Furthermore, the tribes do not know what lenge was that the Nebraska law presented an water they have or what they will be allowed to do with impermissible state burden to interstate commerce. it. The Indians’ wealth position and their flexibility to Nebraska replied that groundwater, which is not a determine their own course of development would be freely tradeable item under state law, is not an article enhanced if their water rights were quantified and were of interstate commerce. The majority opinion for the not restricted to use for irrigated agriculture on reserved Court, by Justice John Paul Stevens, observed that the

86 U.S. Advisory Commission on Intergovernmental Relations agricultural products of the western states, supported The Supreme Court issued the Sporhase decision by groundwater irrigation, are part of markets that are in July 1982 In January 1983, the federal district court not only interstate but international in scope and for the New Mexico District decided the case of City of “provide the archetypal example of commerce for El Paso v. Reynolds. El Paso, Tstas, attempted to acquire which the Framers of our Constitution intended to rights to the use of 296,000 acre-feet of groundwater authorize federal regulation.“61 The opinion ob- from aquifers that are hydrologically connected with served that the multistate extent of the Ogallala the Rio Grande stream system. New Mexico State Aquifer “confirms the view that there is a significant Engineer Steve Reynolds denied the city’s application for an appropriative permit, citing state law forbidding federal interest in conservation as well as in fair the export of groundwate@ El Paso sought to have the allocation of this diminishing resource.“62 The Court New Mexico export ban declared unconstitutional, and, majority defined groundwater to be an article of in light of the Supreme Court’s decision in SporIm, the interstate commerce, subject to federal regulation federal district court agreed with El Paso. under the Commerce Clause, declaring that further Criticisms weredirected to the El Paso decision on “Ground wafer overdraft is a national problem, and three principal grounds. The first criticism is that in its Congress has the power to deaf with it on a national scale. “63 application of Sporhnse, the federal district court The constitutional inquiry then turns to the concluded that states may discriminate in favor of extent to which Nebraska may regulate groundwater their citizens “only to the extent that water is essential withdrawal and use in the absence of congressional to human survival.“” This may be an excessively action on the subject In this regard, some of the restrictive interpretation of the Supreme Court’s conditions the state placed on the export of ground- position in Sporhase. water were clearly constitutional, according to the A second criticism in El Paso was that the district Court Requirements that withdrawals be reasonable, court failed to take into consideration the Supreme Court decision in Colorado v. New Mexico67 handed consistent with conservation, and not detrimental to the down in December 1982, involving the Vermejo public welfare are not unreasonable restraints on the River, which flows from Colorado into New Mexico. free movement of groundwater in interstate commerce. The Supreme Court upheld the doctrine of equitable However, the mcipmcity requirement (for water per- apportionment governing interstate streams, which mits) failed to survive constitutional scrutiny under the divides the waters of a stream so that each state is Commerce Clause for apparently “discriminatory” or allocated a fair share. Since the El Paso case involves “protectionist!’ state regulation. Justice Stevens noted the intexstatetransferof groundwaterthat is part of an that the reciprocity requirement would bar the transfer interstate stream, the federal district court decision of water to any nonreciprocating state, regardless of has been criticized for following Sporhase instead of how beneficial the transfer may be. Such transfers Colorado v. New Mexico.68 Relying on the doctrine of would be prohibited by the Nebraska law even if there equitable apportionment rather than the Commerce were no detrimental effects for the state and even if the Clause to govern the case would maintain the state were sitting atop a massive groundwater surplus recognition of state interests in the management of water resources by allowing each to regulate its fair Finally, the Court observed that federal deference to the share of water resources that underlie or flow through states in groundwater law and management does not more than one state.69 Part of the problem with the El and cannot remove constitutional constraints64 Paso case, then, is that it The dissenting opinion by Justice William Rehn- quist criticized the majority for failing to confine itself was argued under the wrong theory in the to the issue of the relationship between the Nebraska wrong court Under the U.S. Constitution, law and the Commerce Clause. In the view of the disputes over interstate streams are to be de- dissent, the majority had “gratuitously” undertaken cided by the Supreme Court of the United and decided additional issues that were not presented States, not by a federal district court, and un- by the case, such as whether groundwater overdraft der the federal common law these disputes constituted a “national problem,” the scope of congres- are governed by equitable apportionment, sional authority to regulate groundwater withdrawals, not by the commerce clause.70 and the relationship between the Nebraska statute and federal laws that were not passed, not challenged, and Finally, El kso has been criticized on policy not before the Court in any but a hypothetical fashion grounds. By deciding in favor of the Texas city seeking In addition, the dissenting opinion argued that it was additional supplies and against New Mexico, the difficult to see how “commerce” could exist in ground- federal district court “penalizes a state with a progres- water since groundwater in Nebraska could not itself be sive water law system (New Mexico) and rewards a reduced to possession, and the only right conferred on wasteful system (Texas).“n Nebraskans was the right to use the groundwater on The Sporlme decision, on which the federal averlying lands owned by the pumper district court based its El Paso decision, also has drawn

U.S. Advisory Commission on Intergovernmental Relations 87 attention and scrutiny The Supreme Court’s ruling to consider the supplies available to an export that groundwater is an article of interstate commerce applicant in the applicant’s home state. This raises the subject to direct congressional regulation has gen- question of one state9 authority to restrict exports of erally been acknowledged to have substantially water into another state where water surpluses exist, or weakened the basis for state and local primacy in the where wasteful water practices have resulted in the management of groundwater supplies, to have attempt to import water from elsewhere. Neither of “opened the door for federal control over groundwa- those issues was reached by the Sporhnse decisions1 ter on nonfederal lands,“R and to have “far-reaching” Three years after Sporhase v. Nebraska, the Court implications for water regulation.73 decided Garcia v. San Antonio Metropolitan Transit Much of the post-Sponhase analysis has been Authority.82 The Garcia decision calls speculations addressed to the questions of what authority remains about the remaining groundwater management au- with states to limit and control theuse of groundwater thority of the states into question. Garcia holds that, in resources. The majority opinion in Sporhase has been Commerce Clause cases, the limits on congressional interpreted by different observers to mean: authority relative to the states and localities are not 4 Narrowly tailored state restrictions on imposed by any substantive concepts of “reserved groundwater use could be sustained if powers” under the Tenth Amendment, but by the shown to be related to the state’s legitimate procedural elements of the “political safeguards of interests in conservation and preservation of federalism.” In the aftermath of Gnrcin, once ground- the resource.74 water has been ruled to be part of interstate commerce, there are no aspects of its governance that the b) State restraints on groundwater exports may constitution reserves to the states, just those that the be permissible if the withdrawals for export Congress leaves to the states. Even if states retain would result in groundwater mining thus some authority to regulate groundwater supplies, a impairing the resource.75 key question of intergovernmental relations and cl State restrictions on groundwater exports water resource policy raised by Sporlrase is whether may be sustainable provided that a discrimi- and to what extent the uncertain specter of direct natory embargo against out-of-state resi- federal regulation, production, and transfer of dents is not their prime purp0se.7~ groundwater supplies may inhibit the willingness of states to engage in innovations. 4 State restrictions on groundwater exports might be justifiable in times of “severe short- At present, there is little question that the Congress age,” in order to protect the health and safety has the constitutional authority to directly regulate interests of the state’s citizensn groundwater under the Commerce Clause. In a legal confrontation between federal and state regulatory From the standpoint of enhancing the marketability power, the federal power would prevail. The S~&W of production rights to groundwater, Sporlzase may decision means, among other things, that the deference also be seen as removing arbitrary state “resource of the Congmss to the primacy of state authority in the isolation” barriers to the interstate movement of area of the management of groundwater supplies is groundwate?’ based not on constitutional power but on federal comity The Sporlrase decision is seen as having left the following questions unanswered: Summary: Certainty in Water Rights and in State 4 Can a state’s projections of a “severe short- and Local Authority. Water rights should be charac- age” that would occur if a groundwater ex- terized by certainty (a protected right to a specific port were allowed be used to justify restrict- quantity of water for a known tenure) and flexibility ing that export? (the ability to convert the right through exchange)F3 Certainty is often lacking in state laws defining b) In so projecting, can a state take into consider- production and storage rights ation acreage that might become permanently Rights to production often lack certainty because nonirrigable if the export were allowed? they are unquantified and because other users may 4 Can states prohibit export where the health begin to assert “latent” unspecified rights. Rights to and safety of residents might not be threat- storage often lack certainty because they have not ened but “instream flow” values would be?79 been provided for or because local entities that could store and recapture water lack either the authority to Nebraska and New Mexico changed their laws do so or the implementing mechanisms. Further governing groundwaterwithdrawal and use afterthe progress in the definition of production and storage Sporltase and EZ Paso decisions. Nebraska adopted a rights and the authority of local water resource permit system for all groundwater withdrawals.sO management organizations is drawn into question New Mexico enhanced its review of permits for not only by the continued existence of “latent” federal groundwaterexportbyauthorizingthestateengineer rights, but also by uncertainty about the scope of state

88 U.S. Advisory Commission on Intergovernmental Relations and local authority relative to federal authority Each This approach represents an attempt by the commu- of these attributes of the institutional arrangements nity to achieve its gain at the expense of individual governing the use of groundwater supplies forms a rights owners. However, the chances for full com- barrier to more effective coordination of water re- pliance with such an arrangement are smaller than if source use. So does the lack of flexibility (i.e., market- institutional arrangements for limiting withdrawals ability) of production rights. are compatible with individuals’ incentives. Owners possess a valuable property right in the use of the Lack of Transferability of Production Rights water supplies. The imposition of regulations requiring owners to forfeit some or all of their right for the Along with increasing the certainty of water collective good isunlikely tobe received as a welcome rights, increasing their flexibility is a long-proposed development The regulatory approach therefore institutional reform. Local users have experimented will likely require extensive monitoring and enforce- with transfering rights on the local, basinwide scale ment of individuals’compliance with a rule that runs when they could find ways to circumvent the ob- counter to their goals. stacles in the laws. Whether or not one is inclined to Water management programs stand significant- believe that the benefits of water rights transfers are ly better chances of success and stability if water rights sometimes oversold by their proponents, preventing owners benefit from it? Assuming that there are them creates real barriers to effective management collective gains from more efficient water resource use, Among the barriers are: disincentives for conserva- there should be no intrinsic problem in securing those tion and more efficient use of groundwater supplies; benefits through processes that distribute at least some the maintenance of relatively less valued and less of the benefits to the water users and rights owners Thii efficient water uses; and the inability to shift between is the principal argument for making water rights sources or to bring new uses into a basin. Institutional marketable to increase conservation and efficient use. reform in the direction of increased marketability is Once each owner has a quantified right to the use hindered in turn by reluctance to treat water as a of a specific amount of water (i.e., taking advantage of commodity and by inefficient pricing practices the principal benefit of the appropriative rights system), It is in discussions of marketability of rights that allowing exchange of rights creates an incentive struc- the distinction between water shortages that result ture that pmduces a positive+um situation from what from natural scarcity and from institutional rules appeared to be a zero-sum situation. A water rights becomes most sharply drawn: owner who can improve efficiency will be able to Even in the western region, the scarcity of reap the same benefits while using less water If the water to meet the demands of growth is not, owner can transfer the difference to another user for however, a problem of running out of water some consideration, then the original water rights It is instead a matter of allocation of a valu- owner has benefited by increasing efficiency and able economic resource among competing reducing water use rather than being penalized for it In demands. The current allocation has become addition, new uses have been accommodated without inefficient in meeting the demands of increasing the total amount of water withdrawn from growth due to market and institutional fac- the system The water rights owner gains by acquiring tors which discourage the transfer of water something of value for increasing efficiency the new among usesa user gains a valuable water right, and water resoumes an2 used more efficiently Lack of Marketability and Conservation. As noted in Institutional arrangements encouraging conser- connection with the discussion of water rights laws vation could even be applied across water basins. above, most groundwater users face incentives to Communities able to generate surplus waters could “use it or lose it” Pumpers lack incentives to reduce transfer them to water-short communities, and both use, to use water more efficiently, and to waste less of groups could gain by the transaction. Communities it Yet, the community and individual users experience unable to make conservation improvements mightbe losses if aquifers are depleted to the point where assisted by communities seeking additional sources withdrawals are limited because pumping has become of supply This has occurred in southern California, uneconomicaL85 Some form of intervention before that where the Metropolitan Water District of Southern point is reached would be desirable. The question California will pay for water conservation invest- becomes what form this intervention should take. ments in the Imperial Irrigation District in exchange Any effective conjunctive management program for the rights to the surplus water yielded by those is likely to involve reductions in or limits on with- conservation practices8’ drawals in order to control overdrafting. Regulations Impediments to water conservation and water could be imposed on water rights ownem and en- transfers are numerous and primarily institutionaLsB forced by monitoring and policing arrangements Moreover, appearances can be deceiving water laws

U.S. Advisory Commission on Intergovernmental Relations 89 and policies that seem to encourage conservation and alone would have consumed 1,2&lm acre-feet of water marketing may in fact discourage both. For water that yeas which is equivalent to the entire example, “recent Massachusetts legislation allows planned yield of the Central Arizona Project (CAP). inter-basin water transfers only as a last resort, after all Why is so much thirsty alfalfa hay grown in these local leak reduction and conservation efforts have climates? It is surely not because it is a high-valued been exhausted.“*9 While on the surface this appears crop, producing a vital share of the nation’s or the reasonable, this qualification actually discourages region’s economic abundance. Its primary use is for water transfers If user A wastes 20 percent of KS water feeding livestock In the words of Natural Resources supplies, and user B wastes 10 percent of B’s water Defense Council analyst Marc Reisner, supplies, any transfer of water from A to B would improve efficiency of use. Under the Massachusetts In California, the single biggest consum- condition, however, B must reduce waste from 10 er of water is not Los Angeles.. . . It is irrigated percent to zero before acquiring water through transfer pasture. . . . In 1986, irrigated pasture used from A, who may continue to waste 20 percent of its about 5.3 million acre-feet of water-as water supplies until then. In the meantime, the costs B is much as all 27 million people in the state con- likely to incur in squeezing out the last drop of water sumed, including for swimming pools and waste, finding and sealing the last leak, may be several lawns. Its contribution to California’s $500 times the cost of purchasing equivalent amounts of billion economy, on the other hand, was an additional water from the moTe wasteful A Neither invisible $94 million. One five-thousandth efficiency nor conservation is facilitated by such a of the economy; one-seventh of the water. requirement, which undoubtedly was intended to If you entirely eliminated pasture, alfal- facilitate both The connection between water market- fa, cotton, and rice (not everyone’s idea of an ing and conservation is not always obvious In water appropriate desert crop, since it grows only resources management, as in other areas, our institu- in standing water) and substituted nothing tions do not always comport with our intuitions else, you would merely reduce agricultural income from $14 billion to $12.3 million. But you would free up enough water for, God for- Lack of Marketability and Inefficient Water Uses. bid, some 70 million new Californians. The remarkable abundance of water resources rela- Is California atypical? tive to population, even in the relatively arid western Only in the sense that agriculture in Cali- regions, was noted in ChapterZ Some estimates of the fornia, despite all the desert grass and irrigated water-sustainable population of the Colorado River rice, accounts for proportionately Iess water Basin states indicated that those states have not run up use than in most of the other western states.= against the water supply limits of development, but have considerable water supplies to use if they weR Alfalfa and other low-valued, highly water con- allocated differently. In particular, in the western states, sumptive crops are grown with western water re- most of the water rights are held by, and most of the sources for three primary reasons. First, alfalfa in water consumption occurs in, irrigated agriculture. particular is easily mechanized and grown with very Even in the less abundantly water endowed little labor. Second, outside of the Pacific Northwest’s western states, crops that are highly water consump- humid climes or the warmth of California and tive are grown in great quantities. The most highly Arizona, much of the rest of the West’s climate is not water consumptive crop, alfalfa, which requires5 to 6 receptive to many other crops; alfalfa and pasturage feet of water per acre, accounts for millions of acres of grasses are hardy and help keep “blow sand” and soil land use and millions of acre-feet of watet According erosion down. The third (and perhaps most impor- to 1988 estimates, the acreage of alfalfa grown with tant) primary reason is the laws governing water mined groundwater (i.e., nonrenewable supplies) rights in the western states. As John Wesley Powell was as follows: California, 196,000 acres; Tstas, noted a hundred years ago, the greatest source of value 103,000 acres; Kansas,88,000 acres; Idaho, 51,000 acres; in arid lands is access to watecg3 Whether that access is Arizona, 38,000 acres; New Mexico, 31,000 acres; allocated on the basis of actual use under appropriation Nebraska, 27,000 acres; and Colorado, 20,000 acres.% or beneficial use on overlying lands, maximizing this To gain a sense of perspective on the magnitude of this vital asset is secured by maximizing use. acreage, the United States’ entire lettuce crop occupied The crop that consumes the maximum amount of about 200,Oo acres; the California avocado crop occu- water per acre would secure the maximum possible pied about 75,000 acres, and the California lemon crop right to the use of water. Western farmers understand- occupied about 50,000 acreSgl Total alfalfa acreage in ably do not want to relinquish their rights to the use of Arizona was estimated in 1985 to be 200,CK)O am, water and receive nothing in return. There is no irrigated with renewable and nonrenewable water incentive for an individual farmer to grow anything supplies: at 6 acrefeet of water per year, the alfalfa crop else or irrigate fields more efficiently except where it

90 U.S. Advisory Commission on Intergovernmental Relations might be possible to transfer water rights to a city, a will adjust the laws to permit it With transferable water water district, a suburban community, a manufactur- rights, an allocation of water rights based on past use is er, or another farmer, in exchange for something of not locked into the same uses or the same owner3 as value. (This would also explain the fact that even conditions change?6 municipalities and manufacturers maintain alfalfa In the absence of transferability, one must either fields in the desett Southwest They are not maintaining assume that the original allocation of water rights the nation’s livestock supply or perpetuating rural was perfect or accept the possibility that the original agrarian traditions, or maximizing profit through iniga- allocation is likely to have been somewhat imperfect tion to yield high-valued crops They are making sum and to become increasingly so over time.97 Accepting that they have the largest possible share of water rights) the latter conclusion, an important issue becomes Laws that would simply shut down enough how to adjust the original allocation. Marketability of irrigated agriculture to generate water to supply water rights would allow new users to “buy in” to municipal and industrial needs miss the point, and acquire water rights. When combined with the ability would go too far Those who have properly acquired, of the original owners to enter into exchanges, held, and used water rights-in other words, who have adjustments to the original allocation of water rights played by the past and present rules of the game- could be made on the basis of terms of exchange should receive an agreed-on compensation for mlin- arrived at by willing sellers and potential buyers, quishing those rights moving water at the margin from those who value it Those who object that water rights transfers from less to those who value it more. the agricultural sector to the municipal and industrial In the absence of the ability to make relatively sector would threaten the future of irrigated agticul- continuous marginal transfers of water rights, those ture and the nation’s food supply also miss the point seeking water under conditions of scarcity tend either Bearing in mind that agriculture accounts for about 80 to undertake large-scale water transfer projects or to percent of water use in the west while urban water bring political pressure on some larger jurisdiction to use is about 7 percent, a reduction of only 10 percent undertake transfer projects on their behalf.” 7’he in agricultural water use could double the amount of notion that marketability of water rights means a bidding water available for urban ~ses.~ This is hardly a wal; transfers of water from one location to another and wrenching dislocation of irrigated agriculture, and it escalation of costs, and that these problems are avoided by would produce more water availability than needed nonmarketability, is simply false. Without marketability, by the urban sector in the most arid and fastest the bidding war is simply shiftedfrom the economic arena to growing region. Indeed, the comparison in Chapter 2 the poli tical arena, water is transferredfrom one location to of the populations of the more arid western states another by means of massive structural projects, and the with what those states could support if all irrigated costs of water transfers by those means (while hidden) are agriculture were eliminated shows how little change higher of would have to occur in the water use practices of than the costs transfers of water rights negotiated between potential buyerandpotential seller Yet most state irrigated agriculture in order to accommodate current lawsmakeitdifficulttotransferwaterrights from one and projected populations. use to another and practically impossible to transfer Lack of Marketability and the Problem of New rights from one place to another. Users. Lack of transferability also has complicated There is evidence that when they are allowed to the problem of accommodating new users. In appro- do so water users will transfer rights from agricultural priation states,for example,the total quantity of water to municipal and industrial uses,and reallocate water in many stream and aquifer systems has reached or is from irrigation to higher priority uses. Private capital approaching “full appropriation.” Yet, because pro- markets are being developed to facilitate acquisitions duction rights often are nontransferable, this situa- of water rights for growing municipal and industrial tion “leads some analysts to conclude erroneously demands, complete with water “brokers” who con- that all the available water is being consumed or that nect sellers with buyers and help negotiate transac- no new water uses can be accommodated.“95 In fact, tions.% Water rights transfers and water markets are accumulated claims on the water supply may not prospering especially in Colorado, but also in Califor- reflect accurately the needs of users who retain their nia and New Mexico, in Utah’s Lower Sevier Basin, claims because their only other option is to abandon and between agricultural and urban water users in them without compensation. the Tucson area.‘@’ If owners could transfer their rights to new users, In the adjudicated groundwater basins of southern many claims (some of which are a century old) to California, where groundwater pumpers fashioned water in the appropriation states probably would their own management programs through court judg- become available for purchase. New uses of limited ments, the water rights allocated to existing pumpers groundwater supplies, for example, could be met were fixed and quantified, but they were also made without increasing pumping rights if state legislatures exchangeable. Lively intrabasin lease and sale ex-

U.S. Advisory Commission on Intergovernmental Relations 91 changes have characterized those basins since the entry tractors (though a low ceiling has been of judgments Though the courts, water users in those placed on the rental price).‘a5 basins found a way around the lack of quantification and marketability of rights inherent in the law. Efficiency in resource use should be and ostensi- Laws and policies are all that stand in the way of bly is a goal of public policy. Efficiency requires these water rights transfers. For example, an attempt shifting resource use from lesser toward higher in the 1980s by the City of San Diego to enter into an valued uses, just as it involves the reduction of agreement with Wyoming ranchers on the upper wasteful useslOd If transfers of water rights are reaches of the Colorado River was aborted because it blocked or impeded by laws and other institutional would have violated terms of the Colorado River arrangements, then the tools of public policy are Compact and the international treaty with Mexico. defeating the goals of public policy San Diego wanted to compensate the upstream ranchers for using less water, which would have Objections to Water Marketing: Agricultural and allowed greater amounts of flow to descend to the lower Other Third-Party Effects, and the “Water Is Differ- reaches of the Colorado Rivel; where it could be ent” Objection. Objections to water marketing arise diverted by the city The agreement would have on the ground that it will wantonly destroy the benefited both parties and moved water away from less agricultural sector of the economy Yet, the percent- valuable uses, but it was blocked by the existing rules ages of water rights that would need to be shifted away governing the allocation of Colorado River waterslo from western irrigated agriculture are small. Also, United States Representative George Miller of w&rkting amounts of water transferred to amounts California, who chairs the Subcommittee on Water, Power, and Offshore Energy Resources of the Com- consumptively used, as discussed in connection with mittee on Interior and Insular Affairs in the U.S. the practices of the New Mexico state engineer in House of Representatives (and who is not an advo- Chapter 3, can protect neighboring water uselsiw cate of unfettered water marketing), introduced legis- Relatively continuous, marginal adjustments in lation in the 99th Congress that would have estab- the distribution of consumptive water rights should lished a “water exchange” in central California. The not produce massive displacements in the agricultur- exchange would have allowed San Joaquin Valley al sector As water rights are transferred from agricul- farmers to sell their water rights to southern Califor- tural to municipal and industrial uses, labor opportuni- nia cities rather than use the water on lands tainted by ties axe likely to increase in the graying urban areasI@ agricultural drainage water high in selenium, and Some in farm communities might experience difficulty would have applied part of the profits to alleviating with significant capital investments at risk, many of the polluted drainage problem. Representative Mill- whom have been encouraged to make those invest- er’s bill was not acted on by the Congress.lm A few ments by decades of governmental policies It is not states have attempted to revise their groundwater necessary to dismiss these potential problems simply by laws and policies to facilitate the voluntary transferof pointing to the “rough justice” of the “free market” rights and to further the lease and sale of water Instead, these third parties might be compensated by Amongthe promising institutional reforms of the last the beneficiaries of the transaction. Having enforced a decade are: misallocation of water rights for so long states and local a) Oregon and California have tied to elimi- communities should be able to ease the transition to a more reasonable allocation, especially since water nate the disincentive to conserve water byal- rights transfers can save money that might otherwise lowing rights owners to retain water con- have been invested in large-scale water projectslOg served by efficiency and a 1980 ruling of the Other objections to water marketing arise from Idaho Supreme Court held that an appropria- reluctance to view water as a commodity. Water tor retains the right to water salvaged by reduc- supply has been seen traditionally as a service ing seepage from transmission systemslm delivery function, to be regulated and subsidized, but b) During the 198Os, California enacted legisla- not priced or traded. This distinction between “com- tion providing that water transfer does not modity” and “service” stems in part from the percep- constitute wasteful or unreasonable use and tion that, as a necessity of life, water should not be directing the state’s Department of Water Re- subject to the coarse rigors of the marketplace, and its sources to implement state laws regarding provision to consumers should not reflect such harsh transfers and encourage the voluntary trans- economic factors as the cost of production or consum- fer and exchange of water? er demand. “Freshwater is too important to be given over to free market forces,” argues Williamson B.C. c) Idaho has experimented with the transfer Chang.‘lO This reasoning begs the question of why of water impounded by federal water proj- consumers are not similarly provided with food, ect reservoirs so that contractors with sur- clothing, orshelter “services” without regard to cost or plus water can “bank” it for rental to con- demand, and of why such other “utility” services as

92 U.S. Advisory Commission on Intergovernmental Relations electricity and telephone cost the average household As Figure 5-l shows, the average family’s annual much more and are priced according to use. What water bill in 1984 was $143. The average family’s stands to CO.9 citizens more in the long run is the telephone bill was more than three times as high, the continuing misallocation of water resou~es that would natural gas outlay four times as high, and the annual result from an illusion that water ought somehow to be electric bill five times as high. The annual outlay of exempt from treatment as a commodit$ll the average U.S. family in 1984 for water constituted Another objection to treatingwateras a commod- 0.5 percent of median family income. ity and allowing its price to reflect its valuation by While rates charged by water supply systems may users is that demand is inelastic-the quantity of water range from 10 cents to $5.50 per $000 gallon,s,“8 the vast demanded does not vary with price. The reasoning of majority of the population is nearer the low end of this this objection is that necessary uses of water are range than the high end Water supply systems charg- rdativeiy fixed for each person, and, theEfore, increm kg rates Of 1esS than $1.00 per lpo0 gallons serve 88.8 in price will only capture economic nznts and will not percent Of the population. While 11.1 percent of water materially affect the demand q@y systems charge $3.00 or more per 1,000 gallons, Yet there is considerable evidence that water they serve only 0.01 percent of the population.1*9 demand is price sensitive, even if it is not fully Among the difficulties to be faced during the next elastic.112 A comparison of the 12 hydrologic study few years are that any increases in water prices to areas in California shows that 1984 water use varied make up for past undervaluation will be com- from approximately 300 gallons per person per day in pounded by the increasing costs of meeting water the two regions where water costs were less than 20 quality standards and of needed investments in cents per 100 cubic feet down to about 175 gallons per repair and improvement of facilities. Long-needed person per day in three regions where water costs reform in the direction of full-cost pricing of water exceeded 70 cents per 100 cubic feet, and the overall supplies is coming at the same time as the impact on correlation between water use and marginal price rates from these other sources. In the first half of the was -0.62113 Similarly, in Arizona, water use per person 198Os, water rates in 20 large cities increased by 90 per day is approximately twice as great in Phoenix as in percent at the 1,000 cubic-feet use level and 55 percent Tucson, and water rates are approximately twice as high at the lO,ONl cubic-feet use level, while the general in Tucson as in Phoenix114 According to Lawnznce Consumer Price Index rose 21 percentlm Rate in- Masher, studies of one electric power plant showed that creases in excess of the general inflation rate are an innease in the price of water from 1 cent per expected through the first half of the 1990s. thousand gallons to 5 cents per thousand gallons Of course, comparisons of what customers are resulted in a drop in water use from 50 gallons per charged per thousand gallons or per hundred or kilowatt-hour of electricity generated to 0.8 gallons of thousand cubic feet of water presume that suppliers water per kilowatt-hour generated: “A five-fold price charge according to the amount used. This implies increase thus led to a 5Gfold reduction in water use.“‘15 being able to account for the amount used, an ability A good such as water has multiple attributes and that suppliers in some of the largest population uses. Some of those uses are highly price sensitive centers have not had. Even the practice of metering while others are not As the price of water increases, has not been used in some places; residents with least valued uses are curtailed first while higher connections to water supplies are charged a flat valued uses are not curtailed at all, but overall water monthly fee regardless of the amount of water they use declines?16 Outdoor summer water uses, for use. The marginal cost of the water used then?fO~ example, tend to be curtailed to a greater degree in de- every time the tap is turned on. The incentive response to a water rate increase than indoor toward overuse is cleat; and the implications for year-round water uses - in fact, outdoor water uses management are substantial. Charging prices for water may show an elasticity of demand of greater than that moR accurately reflect its value is impossible if use one.117 There is no evidence that increases in the price is not measured. of water workany particular hardship on individuals Sacramento County, California, has embarked on or households in that they are unable to afford a Isyear, $135 million program to install residential enough water for need, but there is evidence that meters. In the populous and prosperous California users become more attentive to water waste and capital, where some of the most active opponents of reduce lower valued uses. water diversions to the San Joaquin Valley and Water rates have long borne no apparent relation southern California reside, water use has not been to the natural scarcity of the good. The combination of mete-d. Average per capita daily water use in the generally plentiful supply through most of the county has been estimated to be 300 gallons, and the country and inefficient pricing practices has pro- flat monthly residential fee is $7.61.“l (By contrast, in duced underpricing of watec Water is by far the least notoriously thirsty Los Angeles, where the average -pensive of the utilities for which households pay household monthly water bill was recently increased

U.S. Advisory Commission on Intergovernmental Relations 93 FigfIre 5-z Comparison of Annual Utility Bills, 1950-1984

w-a-- Electric ...... phone - - - Noturol cos - Water (ond Sewer) 6 -i I 5A i 4 i i 3 -,

2 i

1.w- -i ---i-I---- !E% 1960 197G Year

Source: WadeMiJler Associates,~fe~[7tioa’sP~~blicIl’orks: Rqwtoa 12TllterSupply (Washington, DC: NationalCouncilon F’ub- lit Works Improvement, 1987).

94 U.S. Advisory Commission on Intergovernmental Relations to about $22.50, per capita daily water use is about 190 water rates have risen considerably over the past gallons.) The installation of water meters in Sacra- three decades: mento County will take time and represents a substantial financial investment When completed, it Several significant trends ate developing in relation to urban per capita water use in Califor- will allow water rates to be charged on the basis of nia. Construction of more multiunit housing use, which represents a tremendous step toward ma- the general reduction in residential lot sizes, sonableness in water pricing. the inaeasing number of residences built since New York City also has begun a program to enactment of legislation requiring low wa- install 630,000 water meters in all five boroughs over ter-use fixtums, and the multitude of local the next 10 years at a cost of $290 million. New water agency water conservation programs in effect revenues are expected to repay much of the capital are all tending to reduce per capita water con- cost of the installation, and to defray some of the sumption. Other conservation trends include expense of needed improvements to the quantity and plantings of low water-using landscapes and reliability of the city’s water supplym more efficient wateringln Expectations of widespread public outcry over increased water rates may be exaggerated; the fact Of course, none of this conservation happens if that water prices have been distorted and kept water is artificially cheap. Calling for better water artificially low does not necessarily say anything management without recognizing the need for mote about customers’ willingness to pay’” In fact, there realistic prices misses a fundamental point Water that is are strong indications of willingness to pay higher not valuable enough for producers and consumers to prices for reliable water supplies. From the mid-1970s pay attention to or monitor is not valuable enough to to the present, there has been rapid growth in the manage or conserve Artificially low prices do not just markets for bottled water and home water treatment encourage consumption and waste, they contribute to systems, despite the fact that the water is hundreds of the persistence of the illusion that water is endlessly times more expensive per gallon basis than water from abundant, that it is not an economically scarce good. a public systemlz4 with customers paying premium prices for substitute goods, local officials and water purveyors should be able to implement the changes DISTORTIONS CREATED BY WATER SUBSIDIES needed to establish mom realistic water rates’” How water pricing and marketing interact and It has been said that the United States is not relate to more effective management may not be “running out of water/l but is “running out of cheap immediately clear Before discussing distortions in water”12B Rational pricing practices are impeded by decisionmaking caused by water subsidies, it is worth subsidies When supplies are subsidized, inaccurate pausing here to make the connection more explicit price signals to users result in m&allocations of re- There is a direct interaction between prices and sources Both efficiency and equity in the allocation of rights transfers. Once pricing is viewed as a dynamic water resources are negatively affected by subsidies rather than static process, the relationships between Subsidization of water supplies occurs in several the prices at which consumers receive water, the ways In some communities, commingling of water supply and electrical power provision results in the amount consumers will want to receive, and the use of power rates to finance water operations, so a amount suppliers are willingto offer begin to emerge. share of the costs of water supply is borne by power For example, if 1988 population projections for the users. The Salt River Project, a special district in western states are used along with an assumption central Arizona, has been cited as an example of that urban water rates will remain constant, then subsidizing water supplies with electrical power agricultural use would have to decline by 6% pement, rates According to a 1985 publication, electrical or 5,149,tMO acre-feet per year, to ensure stable supplies power sales generated 98 percent of Salt River Project for the West through 2OM. Howevel; a doubling of revenues,r29 a fact partially explained by the fact that urban water rates reduces projected urban use suffi- voting for project directors is based on land owner- ciently to reduce the projected reallocation from agricul- ship, so power rate subsidies are a means for farmers tural to urban use to only 208 percent, or 1537poO (who hold most of the votes) to shift project costs to acre-feet per year? As municipal and industrial water urban dwellers (who would hold the most votes if prices rise, consumption declines, as does the amount of voting were per capita). As a result, the price of water additional supplies that need to be secured, whether delivered to lands within the Salt River Project has through water projects or rights transfers worked out to less than 1 cent per ton.lm Consider the following observation of trends Another means of subsidizing water supplies is toward decreasing per capita water use in the more through local property taxes or other unrelated heavily urbanized portions of California, where revenue sources, and the commingling of water

U.S. Advisory Commission on Intergovernmental Relations 95 supply with other general fund operations. Invest- irrigators has increased to rates approaching 90 ments in water supply or treatment often are fi- percent. 136 “In California’s Central Valley Project, nanced by bonds that are repaid out of the local only 5 percent of the total $931 million spent on the property tax or other general fund revenues Because project’s irrigation facilities over the last 40 years these revenue sources are not tied directly to water has been repaid to date.“lY use, some residents will pay for more water than they What happens when 85-95 percent of the costs of use while others will pay for less, and direct water a federal water project are paid by powerusers and by charges will be artificially low. In addition, keeping taxpayers across the country, while 5-15 percent of the water rates artificially low may have been a deliberate costs are paid by local water users? Water from federal choice as part of a local or state strategy to encourage projects is so inexpensive that local users have no economic development or by deferring maintenance incentive to conserve or manage local or supplemen- and repairs Such decisions are more likely when water tal supplies.138 To the extent that the price of a good supply competes for attention with a host of other communicates information about its relative scarcity, concerns in a local government that mingles water and the prices from federal project water have been other revenues and expenditures131 communicating for decades that water supplies, even Often, assistance in water supply project con- in the arid West, are more abundant than the soil that struction, operations, and maintenance has been is irrigated with the water In fact, water from some provided by the state or national government This federal projects in the West has been sold to local users provides local water users with the opportunity to at rates that work out to pennies per ton, which makes spread the costs of investments from which they will water in this near-desert climate cheaper than sand.13g benefit to a broader set of taxpayers The federal Estimates of the cost of water for irrigation in the government has financed a major portion of water West vary from !§3.50-$5.00 per acre-foot to $1~$15 per resources development from general taxes and bor- acre-foot In either case, the subsidized price is several rowing as well as the reclamation fund.‘32 The costs of times less than the full cost of provision. A 1981 report those essentially local development projects have from a San Francisco Federal Reserve Bank econo- been spread across all federal taxpayers. Federal mist estimated that the average price for federal financing of project construction was originally Central Valley Project water paid by California justified as an interest-free loan to be repaid by the farmers was $5 per acre-foot, compared with $48 per water users within ten years On this theory, the only acre-foot average replacement cost, and $325 as the “subsidy” would be that the local users would not face estimated marginal cost of developing an additional interest charges when they repaid the capital costs and acre-foot of wateP Five years later, while the paid for the operations of a federal water project The estimated average replacement cost per acre-foot had subsidy was justified on the ground of the federal risen to $73, the average price paid by Central Valley interest in promoting the settlement and development Project irrigators had risen to $6.15.141 At 1985 rates, the of the western lands total annual federal subsidy to irrigators in areas As the federal reclamation program developed, covered by Bureau of Reclamation projects was however,“it became clear that the irrigators wouldbe estimated to be $1 billion.‘42 unable to reimburse the federal investments within Urban water users in the West typically pay 20 ten years.N133 The Congress had to prop up the times the irrigators’ $5$15 per acre-foot of water. In reclamation fund with direct appropriations. In 1926, Los Angeles, for example, the average household’s the period for repayment of the costs (without monthly water bill is about $22.50, which works out to interest) of Bureau of Reclamation water projects was about $270 per acre-foot, using the normal assumption extended from the original 10 years to 40 years In that an acre-foot represents the average household’s 1939, the law was amended again, placing repayment water use for a year. If urban water rates for an acie-foot on an “ability to pay” basis.‘% Continuing the devel- of water were $5$15 instead of $1@$300, the average opment of the West was deemed more important household’s monthly bill in semi-arid Los Angeles politically than securing reimbursements for water would be somewhere between $0.42 and $1.25. projects. 135 Moreover, repayment obligations were At rates that low, there is little incentive to suspended in any year when insufficient flows were conserve water or even to keep track of it, much less available from the federal reservoirs, and subsidies engage in vigorous local management For example, from the sale of hydroelectric power are allowed to a RAND Corporation report compared the local make up the difference between farmers’ ability to management of water supplies in southern Califor- pay and amounts owed. nia, where natural water supplies are more scarce but With the extension of time for repayment, no water is more expensive (including imported water interest, and the ability to shift the costs of project from locally financed projects such as the Colorado construction and operation to hydroelectric power River and Owens Valley Aqueducts), with the “man- consumers, the amount of the federal subsidy to agement” of water supplies in the San Joaquin Valley,

96 U.S. Advisory Commission on Intergovernmental Relations which is served by the federal Central Valley Project more water projects the federal government assists and California’s State Water Project Among the with, the more intense become the demands of the observations concerning the valley were: remaining localities that have not yet received a&- tance. Agricultural interests correctly perceive access Those who have received relatively in- to a reliable supply of water as essential to their expensive Central Valley Project water have seen no need to control pumping. They take survival; obtaining that supply at lowest cost makes the water when it is available and pump economic sense. Over time, cost-benefit formulas when it is not . . . In general, pumping is not approved by the Congress for analyzing water proj- monitored or controlled as it is in southern ects have become distorted to yield the results that California.. . . will justify building the project’& In general, it appears that most valley The policy of federal subsidization of water water users prefer either localized recharge supplies has been driven not by economic criteria of projects or groundwater mining to adjudica- total benefits versus total costs but by political criteria tion or basinwide regulation imposed by the of distribution, i.e., who benefits and who pays. There state. Some still anticipate that future federal is considerable evidence that the principal beneficia- and/or state rescue projects will bail them out ries of federal water subsidies are large landholders in with inexpensive subsidized surface water, the western states146 This is true despite the original despite rising opposition to such projects on limitation on water availability from projects built by economic grounds Others suggest that their the federal Buwau of Reclamation. Water from reclama- problems would be solved by construction of tion projects was supposed to be delivered to irrigators additional facilities to meet State Water Proj- for use only on up to 160 acres of land. ect contractual commitments. If surface wa- The 160-acre limitation has been honored prin- ter cannot be brought in, then many favor cipally in the breach. A 1980 bureau report on 18 pumping until this is constrained economi- projects indicated that half of the land supplied from cally by increased pumping costs’” bureau projects was in the hands of 9 percent of the landowners:*’ and one third of the land was owned In light of the availability of groundwater from by 3percent.‘* The largest 5 percent of irrigators, each underground storage and cheap subsidized water with 1,280 acres or more, received 50 percent of the from surface reservoirs, two statistics that would total water subsidy, and the largest 1 percent received otherwise appear puzzling given the distribution of 21 percent of the subsidy. Farmers with 160 acres or natural water supplies in California make sense. The less represented 60 percent of all recipients of bureau first is that 75 percent of the total amount of groundwater; they received 11 percent of the water subsidy? water overdraft in the state occurs in the southern San Federal water subsidies amount to a program of Joaquin Valley.144 The second is that 8 of the 11 wealth Edistribution from federal taxpayers and groundwater basins in California identified as being many electric power users to holders of large tracts of in “critical overdraft” condition in the 198Osare in the Sacramento-San Joaquin Valley, and none of the 11 is western lands who use large amounts of federal project in the more heavily populated arid southern counties wateP As far as can be discerned, this was not among the original objectives of the reclamation program of Los Angeles, Orange, San Diego, Riverside, and San Bernardino, where 15 million of the state’s 29 The beneficiaries of federal water subsidies have a clear incentive to try to retain them; those who pay million residents live. The objectives of federal policy were to encour- for federal water subsidies have little incentive to try age western settlement and development and the to n&rain them. The principal beneficiaries are relative- growth of the agricultural sector, as well as to satisfy ly &, relatively large, and politically influential in their certain ideological objectives of the “conservation states and with their congressional delegations151 The movement,” and the promotion of a “rural democra- relationships at work are fairly simple: cy” composed of yeoman farmers with small,self-sufficient family farms. These benign objectives led to The wider the resource base, the smaller the building of water projects, the sale of the devel- the per capita burden of taxes and controls oped water at subsidized rates, the watering down of and hence the more passive the public; the repayment requirements, the muting of incentives smaller the base the greater the per capita for sta te and local water management, and, over time, burden and the more active the public be- the creation of organized political constituencies in comes.. . . Therefore, in the field of reclama- favor of maintaining and extending the status quo. tion I would expect the subsidy from federal In a curious sense, in the political arena, the projects to be greater than from state projects federal financing of water projects has been a situa- such as those undertaken by the state of Cali- tion in which “supply creates its own demand.” The fornia, and this is in fact the case>%

U.S. Advisory Commission on Intergovernmental Relations 97 When additional water can be developed acm.157 In 1983, the United States paid farmers not to through rural-urban transfers or other transfers from grow crops on 82 million acres of land, about one-fifth lower valued uses less expensively than via of the farmland, at a cost in excess of $4 billion.‘5B large-scale structural water projects, this “raises the The overall results of subsidizing water supplies issue of the incidence of benefits and costs implied by may be viewed as “irrational.” In the end, taxpayers different modes of water supply and related financ- pay for the same food four times: for the surface water ing arrangements.“153 For example, projects that provide the cheap water, for the support and storage programs that buy up the agricultural the federal government will pay for a large surpluses and guarantee farm incomes, for the pay- part of the Central Arizona Project while the ments to other farmers to take land out of production, people of Central Arizona [would] have to and for the food purchase at the grocery store. pay the costs of purchasing agricultural wa- It also may be argued that the old persuasive ter rights in any rural-urban water transfers reasons for federal funding and construction of water While the benefits are essentially the same, development projects are no longer valid.‘591f the real the incidence of costs is much different, be- objectives of federal water development assistance ing placed upon the whole nation in the case were settlement of arid lands, flood control, promo- of the Central Arizona Project, but upon the tion of agricultural development, and exploitation of beneficiaries alone in the case of the purchase prime natural sites for water development, those of agricultural water rights Federal subsidies objectives have been fulfilled.‘60 If the real objectives and repayment policies thus have the power of federal water development assistance have been of subverting economically rational decisions provision of cheap water to politically powerful constit- in this vital area of water supplyP uencies at prices far below the cost to taxpayeE while inflicting forms of damage to the western environment One of the most perverse outcomes of the that am only now beginning to be seen and compre- expansion of irrigated agriculture is that it has placed hended, those objectives cannot be sustained. a strain on water resources in order to provide According to several experts, if subsidizing water additional yields of surplus crops. Over one-third of supply operations with general revenues, power the acreage irrigated with water from bureau projects revenues, or by tapping into the treasury of a larger is growing surplus crops, some of which are highly jurisdiction was ever justifiable, it is justifiable no water consumptive.155 When surplus crops are being longer M Uses of water that would not occur if water grown, continuing to subsidize water for irrigated prices reflected costs of provision are likely to be agriculture cannot be justified on the grounds of curtailed, but this is not necessarily bad: insufficient food supplies for domestic or export mar- We can think of no circumstances under kets Nor is it possible to justify the continued subsidy on which it would be desirable to guarantee $3 the grounds of maintaining low food prices, or with the per acre-foot water forever to those water us- argument that if water prices increased to reflect full ers who first entered basin pumping on the costs of provision, food prices would skyro&et Irriga- premise that water would cost $3 per tors using more expensive water supplies use less wateq acre-foot to pump. Indeed, to state the reverse and employ the water they do use more efficiently In highlights the case: We cannot think of any places such as California’s Central Valley, where some circumstances under which it is desirable to irrigators purchase federal project water at $10 or less spend $30 per acre-foot for water to support per acre-foot while others purchase state project water all future use of water that is valued at only at roughly $50 per acre-foot, both manage to stay in $3 by the water user . . . To argue that all his- business and produce the same crops to sell in the same torical groundwater uses should be main- markets for the same pri~es.‘~ tained through surface imports is tanta- The subsidy system also cannot be justified by the mount to arguing that inefficient water uses need to maintain an excess capacity “irrigation should be sustained because there will of ne- infrastructure” to provide for a sudden response to cessity be water users within the basin who “unforeseen circumstances.” There has long been a value the water less than its full social cost large surplus of agricultural land that could be Gmundwater management will almost invari- pressed into production without need for drainage or ably lead to eventual cessation of some water irrigation to grow basic crops, including low-valued uses where the water is least valued.162 crops such as pasturage and hay that are now being irrigated with project water. Throughout the postwar period, millions of acres of agricultural land have L ACK OF INFORMATION DISTRIBUTION been removed from production under various programs, while additional land has been brought into In the words of a 1989 report of the Office of production with irrigation water In some places and for Science and Technology Policy, “The management of some crops, the replacement has been nearly acre for groundwater resources depends on the science of

98 U.S. Advisory Commission on Intergovernmental Relations groundwater hydrology and information about the ported hydrologic research has emphasized lead- particular groundwater system being managed.“163 ing-edge technology and “state of the art” research, Information requirements for rational decisionmak- rather than the appkation of existing technology ing within state and local groundwater management and knowledge to existing conditions?70 agencies are high. Specification of water rights, The information needs for groundwater man- supervision of rights transfers, and the development agement and for water resource management gener- Of more efficient pricing practices require sound ally are shifting. The needs that are growing are hydrologic data in addition to sensitive awareness of technology transfer and dissemination, for applica- local conditions and needs’& There has been a consen- tion of knowledge to existing problems; and informa- sus in the Water resources literature from the early half tion on management strategies, practices, and per- Of this century to the 1980s that insufficient data e&, formance (especially for smaller systems).ln As the particularly regarding groundwater supplies16 emphasis has shifted from water development to Research has been supported by the federal InOre effective management of existing supplies, and government, state and local governments, and as states and communities are responding with industry associations. Research funding and activi- management innovations, more information is need- ties by entities other than the federal government ed about management activities.ln Research into the have been modest, and,in aI2, waferresourcesresegrch effects of nontraditional solutions to problems and firllding by governments has been approximately 2 the effect of different institutional arrangements on percent of the level of expenditures for water resources supply conditions is of growing importance.in development projects.16 There has not been much dissemination of States and local governments are “uniquely information about resources and management, and qualified” to address water supply management states historically have been reluctant to accept issues within their jurisdictions, and many are rising research results from each otheC174 While problems in to the task On the other hand, it is less plain whether each community are different, there are common states and local governments will fund basic research elements and management challenges that may be as extensive as sophisticated management approaches overlooked, as well as opportunities for beneficial require. 167 A study supported by the American Water changes in institutional arrangements for managing Works Association Research Foundation of barriers to water resources. Scarce personnel time and effort better water management found that, while states do may be needlessly devoted to reinventing a “wheel” invest time and financial resources in water research, that has been devised and tested elsewhere. “in general, states have little money for investigating new technologies or developing solutions to local SUMMARY problems.“‘@ This raises the question of whether the research is best conducted on a state or local scale, in The perceived scarcity of water in various parts of which case their relatively smaller investments the United States results from its geographic distribu- would constitute a problem, or whether some other tion and the scarcity created by water laws and other scale is appropriate. There seems to be agreement in institutional arrangements that distort decisionmak- the water resources research and management litera- ing about the use of water? A stronger statement of the ture that basic research into hydrologic conditions is view that water shortages are more apparent than real appropriately organized at the national scale, was given to the National Council for Public Works through federal agencies such as the United States Improvement in 1987, in a report which referred to “the Geological Survey and the Environmental Protection misperception that severe water shortages exist? Administration, and through the academic community There appears to be sufficient water avail- and associations involved in groundwater manageable in all regions of the country However; due ment, such as the American Society of Civil Engineers, to allocation practices such as the appmpri- the American Water Works Association, and the Nation- ation doctrine, water resources are not allo- al Water Well Association.169 cated efficiently thereby giving the appear- Through the Water Resources Research Centers ance of shortages It also appears that allocation of water is not just a problem west of set up in the states with federal support since the of 1964, and the comput- the Mississippi; water supply systems in sever- Water Resources Research Act al northeastern cities are now faced with stiff erized data access and retrieval systems of the United competition for available resource~~‘~ States Geological Survey and available through its field offices, tremendous amounts of hydrologic data Distortions of decisionmaking about use and are available to state and local water managers and allocation create obstacles to more effective conjunc- users. However, water managers need more than tive management of groundwater supplies. The hard data on the physical characteristics of aquifers, inability of state and local water regulators and and some managers feel that much federally SUP- planners to know the quantity of water rights, and

U.S. Advisory Commission on Intergovernmental Relations 99 thus the outside limits of demand, makes efficient 2 See for example, Wade Miller Associates, The Nution’s and equitable allocation all but impossible. As water Public Works: Report on Wuter Supply (Washington, D.C.: users receive inaccurate signals about the value of National Council on Public Works Improvement, 1987), water and of their rights, their behavior is affected in pp. 115 and 206. ways that are likely to arouse opposition to the 3 Helen M. Ingram et al,, “Guidelines for Improvedlnstitu- imposition of any new rules that might limit and tional Analysis in Water Resources Planning,” Wuter Re- 20 (March 1984): 323. define, or redefine, production rights. Water users sours Research who pay subsidized prices are highly unlikely to 4 K le Schiiing et al., 7he Nation’s Public Works: Report on k&er Resources (Washington, D.C.:National Council on satisfy demands that they conserve water Users who Public Works Improvement, 1987), pp. 19-21. are told to conserve water but are given no incentive to do so are being asked to comply with a rule that (as 5 Okenius, p. 312. they see it) imposes losses on them, but no benefits. 6 Lyle Craine, “Intergovernmental Relations in Water De- No group in society,in the United States or elsewhere, velopment and Management.# Paper presented at the is likely to welcome that sort of “reform.” And in Southern Political Science Association meeting, Gatlin- societies like the United States, where there can never be burg, Tennessee, 1959, p. 3. enough “enforcers” of any rule and where voluntary ’ Wiiiam Lord, “Institutions and Technology: Keys to Bet- compliance is a cornetstone of social orderj rules that ter Water Management,” W&r Resources Bzrlletirr 20 (Oc- impose losses without compensating benefits an2 not tober 1984): 655. likely to meet with high rates of compliance. a StephenBurges andRezaMarnoon, =1 Systenlntic Exmi- A primary goal of water governance should be to nation of issues in Conjunctive Use of Ground and Surface Waters. Water Resources Information System Technical devise institutions that make individual incentives Bulletin No. 7 (Olympia: Washington Department of compatible with collective goals, “to create water Ecology, 1975), p. 8. prices more in keeping with the supply and demand, 9 Ingram et al., p. 326. and to establish well defined, transferable and less n+&ricted water rights”“’ In addition, increasing the lo For asomewhat different, overlappingcategorizationof institutional issues of importance for resources manage- management information available would aid in the ment reform, see Warren Viessman and Claire Welty, development of more effective approaches Water Management: Technology and Institutions (New Many of these observations about the importance York Harper and Row, 1985), p. 52. of changing the institutional arrangements for manag- l1 Micha Gisser, #Groundwater: Focusing on the Real Is- ing water resources are not new Philip Metz-ger of The sue,” JournuI of Political Economy 91 (December 1983): Conservation Foundation reviewed more than two 1010. dozen national water policy studies, and produced a l2 Wiiiam Cox, ‘Water Law Primer,” ASCE Journnl of Wuter report in 1983. He found that while about half of the Resources Plunning and Munugement 108 (March 1982): studies’ recommendations concerning instream and 116. offstream uses had been implemented to some degnze, l3 John W Bird, “Ground Water and Federal Reserved few of the recommendations for institutional changes Rights,“‘lorrmuZ of Water Resources Pbming and Munuge- had been implemented at alL In particular, recommen- ment 109 (April 1982): 175. dations for better coonlination of surface and gmund- l4 Jurgen Schmandt, Ernest Smerdon, and Judith Clarkson, water resources, and for improved cooperation among State Water Policies (New York Praeger publishers, 1988), p. 5. agencies, had largely been left unrealiz&lB”Historical- 13 then, the federal government has funded asses- l5 Frank J Trelease, “Legal Solutions to Groundwater Pro- blems-A General Overview,” Pucijc Lnw Journnl 11 sments of water resources and has tasked those asses- @fly 1980): 869. sments to make recommendations, but has failed to l6 Douglas Grant, “The Complexities of Managing Hydro- organize post-assessment efforts to address institutional logically Connected Surface Water and Groundwater recommendations”179 Under the Appropriation Doctrine,” Lund and Wuter Law The consequences of failing to develop and Review 22 (January 1987): 66; Frank J. Trelease, “States implement the needed institutional reforms are Rights Versus National Powers for Water Develop- becoming increasingly evident In areas with less ment,” in Ernest Engelbert, ed., Strutegiesfor Western Re- abundant water supplies, water subsidies and the gional Water Development (Los Angeles: Western Inter- distortions they cause in decisionmaking have mere- state Water Conference 1966), p. 105. ly delayed the day of reckoning by making it possible l7 Mason Gaffney, “Diseconomies Inherent in Western Wa- for userS to put off shifting to water-saving practices ter Laws.” Paper presented at the Western Agricultural Economics Research Council, Tucson, Arizona, 1961, p. while we continue to look for the next “technological 44. fix” to “make the desert bloom.” la Ibid., p. 55. Notes l9 Stephen Williams, me Requirement of Beneficial Use 1 Christine Olsenius, “Tomorrow’s Water Manager,” JOW- as ‘a Cause of Waste in Water Resource Development,” Natural Resources jmlrnnl23 (January 1983): 7. ~ruZof.SoiZund W&r Conserz~ation 42 (September-October 1987): 312. XJ Lord, 1984, p. 654.

100 U.S. Advisory Commission on Intergovernmental Relations ” Mohamed El-Ashry and Diana Gibbons, “Managing the 31-74; James Krieger and Harvey Banks, “Ground Water West’s Water,” Journal of Soil and Wafer Conservation 42 Basin Management,” California Law Review50 (1962): 73; (January-February 1987): 8. Dutcher and Peterson, p. 397. zz Charles Phelps et al., EIficient Water Use in California: Ex- 39 Dutcher and Peterson, pp. 396-397. ecutive Summay (Santa Monica: RAND Corporation, a Helen Peters, “Groundwater Management.” Wafer Re- 1978), p. 1. sources Bulletin 8 (February 1972): 197. 23 Viessman and Welty, p. 54. As these and other authors 41 Robert Ehrhardt and Stephen Lemont, Institutional Ar- point out, while rights to the use of groundwater and rangements for Intrastate Groundwater Management: A rights to the use of surface water are legally separated in Comparative Assessment Using Virginia as a Case Study many states even though the two sources are physically (Arlington, Virginia: JBF Scientific Corporation, 1979),p. related, the law governing rights to the use of ground- 24. water covers both renewable and nonrenewable aquifers, even though these present very different physical 42 National Water Commission, p. 236. situations. 43 Ibid. 24 Ibid. 41 Sidney Harding, W&rllz California (Palo Alto: N-PPubli- cations, 1960), p. 58. 25 Morton W. Bittinger, “Ground-Water Surface-Water Conflicts,” ASCE JournaZ of W&r Resources Planning and a El-Ashry and Gibbons, p. 12. Management 106 (July 1980): 474. 46 National Water Commission, p. 228. 26 Ibid., pp. 470473. 47 John W. Bird, ‘Water Resources and the Public Trust Doc- 27 cox, p. 115. trine,” Journal of Water Resources Planning nnd Mnnage- merit 112 (January 1986): 66-67. 28 Grant, pp. 64-65; Trelease, “Legal Solutions to Ground- water Problems,” p. 864. 48 Rodney Smith, “A Reconciliation of Water Markets and Public Trust Values in Western Water Policy,” Transactions 29 Thii was recognized bythe National Water Commission, of the Fifty-Third North American Wildlife and Natural Re- WaterPoliciesfor thefuture: FinalReport to thepresidentand sources Conference, 1988, p. 331. to the Congress ojthe Unifed States (Port Washington, New York Water Information Center, 1973), p. 233. a Bird, “Water Resources and the PublicTrust Doctrine,” p. 65. a Joseph Westphal, “The Potential for Water Management so Ibid., p. 69. in the West,” Ground Water 20 (January-February 1982): p. 59. 51 Trelease, “Legal Solutions to Groundwater Problems,“p. 868. 31 Phelps et al., p. 5. 52 Bird, “Ground Water and Federal Reserved Rights,” pp. 32 Les Lampe, “Recharge Saves Water for a Not-so-Rainy 176-177. Day,” American City nnd County 102 (June 1987): 46. 53 Trelease, “States/Rights versus National Power,” p. 103. 33 John E Mann, “Concepts in Ground Water Manage- ment,” Journal of the American Water Works Association 60 54 John Leshy and James Belanger, “Arizona Law: Where (December 1968): 1342. Ground and Surface Water Meet,” Arizona State Law Journal 20 (Fall 1988): 729. 34 Thelma Johnson and Helen Peters, ‘Regional Integration of Surface and Ground Water Resources.” Paper pres- ss Zachary Smith, “Federal Intervention in the Manage- ented at the Symposium of the International Association ment of Groundwater Resources: Past Efforts and Fu- of Scientific Hydrology Haifa, Israel, 1967, p. 495. This ture Prospects,” Publius - ‘the Journal of Federuhsm (Win- was at issue in the celebrated Los Angeles v. San Fernan- ter 1985): 147. do (1975) case, in which the city argued that operating a 56 Leshy and Belanger, p. 729. basin at “safe yield” should not mean the same as operat- 57 Schmandt et al., p, 6. ingit full but should mean operating at a lower level that allows some storage capacity for the retention of poten- sa B. Delworth Gardner, “Removing Impediments to Water tialsurplusesthatwouldotherwiseescape thebasin.This Markets,” Journal of Soil and Water Conservation 42 (No- argument did not prevail in the original trial, but eventu- vember-December 1987): 386. ally was found persuasive by the California Supreme 59 Ibid.; also Norris Hundley, Wafer and the West (Berkeley: Court. University of California Press, 1975), pp. 330-331. as Johnson and Peters, p. 495. 60 Sporhase et al. v. State of Nebraska ex rel. Douglas,Attor- ney General, 458 U.S. 941(1982). 36 Lee Dutcher and Lee Peterson, “Water Zoning-Tool for Ground-Water Basin Managers,” Ground Water 13 (Sep- 6* Ibid., p. 952. tember-October 1975): 397. a Ibid., p. 953. 371n California, for example, municipalities are being 63 Ibid., p. 954 (emphasis added). granted a “public servitude” in stored water, so that municipal withdrawals of stored water would have priority 61 Ibid., p. 959. over other withdraw& during periods of shortage, in 65 Albert Utton, ‘The El Paso Case: Reconciling Sporhase recognition of the public nature of most municipal uses. and Vermejo,” Natural Resources Journal 23 (January 1983): ix. se Susan M. Trager, “Emerging Forums for Groundwater Dispute Resolution: A Glimpse at the Second Genera- 66 Quoted in JohnW Bird, “Implications of Sporhase in Wa- tion of Groundwater Issues and How Agencies WorkTo- ter-Resources Planning,” Journal of Water Resources Plan- wards Resolution,” Pacific LawJournal 20 (October 1988): ning and Management 112 (April 1986): 202.

U.S. Advisory Commission on Intergovernmental Relations 101

136 Schiiling et al., p. 92. I64 L M Hartman, “Economics and Ground-Water Devel- r3’ Schmandt et al., p. 3. opment,” Ground Wafer 3 (April 1965): 6. lss Schilling et al., p. 93. lfi See for example, Ira G. Clark, Wafer in New Mexico: A His- foryof Ifs Management and Use (Albuquerque: University 139 Welsh. Similar comparisons have been made by Natural of New Mexico Press, 1988), p. 422: Resources Defense Council analyst Marc Reisner, whose figure is that water in the western deserts is being Since World War II intergovernmental and supplied at prices approximately 2,000 times cheaper interagency cooperation in resolving basic na- than its equivalent weight in sand. tional water problems has attracted considerable ‘40 P. K. Rao, “Planning and Financing Water Resource De- support across the entire political spectrum. A velopment in the United States: A Review and Policy succession of national investigations, followed by Perspective,” American Journal of Economics and Sociology elaborate reports, supported this approach but 47 (January 1988): 92. with sharply divergent recommendations as to the best means for its accomplishment. . . . Theolze 14’ El-Ashry and Gibbons, p. 11. point on which they did agree was the woeful tackofba- ** Rao, p. 92. sic data regarding waft, and that fhis must be reme- (emphasis added) I* Albert J. Lipson, Ejj5ienf Wafer Use in California: 7he Evo- died. lution of Groundwafer Management (Santa Monica: RAND A good example of Clark’s point is the 1973 report of the Corporation, 1978), pp. 22-23. National Water Commission, which stated laKeith Knapp and H. J. Vawc, “Barriers to Effective it is apparent that there is a deficiency in the Ground-Water Management: The California Case,” amount of technical data and other information Ground Wafer 20 (January-February 1982): 62. about ground water resources, information l6 Susan Christopher Nunn, 7he Political Economy oflnsfifu- which is needed to make sound decisions with re- fionallnnovafion: Coalitionsand Strategy in fheDevelopmenf gard to regulation and management. (p. 247) of Groundwafer Law. Ph.D. Dissertation. University of See also Viessman and Welty, p. 14; and National Research Wisconsin, 1986, p. 45. Council, Committee on Ground Water Quality Protec- 146 Thii can be true of state water projects as well. For con- tion, Ground Wafer Qualify Protection: Sfafe and Local siderable evidence and analysis of the distribution of Strategies (Washington, DC: National Academy Press, benefits from the combination of the federal Central 1986), p. 10. Valley Project and California’s State Water Project in the 166 Schilling et al., p. xii. San Joaquin Valley, see Merrill Goodall and John Suili- van, “Water System Entities in California: Social and En- 16’ Schmandt et al., p. 202. vironmental Effects,” in Corbridge, ed., pp. 71-102. 168 Wade Miller Associates, p. 79. 14’ Rao, p. 91. 169 National Research Council, p. lO;.Wade Miller Associates, 148 Schmandt et al., p. 11. pp. 110-111; Schilling et al., pp. xii-xiii; Neil S. Grigg, “Ap- lg9 Rao, p, 91. pendix: Groundwater Systems,” in Schillinget al., p. B-5; Schmandt et al., p. 2.5. lso Ibid., p. 93. 170 Wade Miller Associates, p. 79. lsl Henry C. Hart, “Toward a Political Science of Water Re- sources Decisions,” in L. Douglas James, ed., Man and Wa- in National Research Council, p. 10; Wade Miller Associates, &(Lexington: University Press of Kentucky, 1974), p, p, 111; Schiimg et al., p. 178. 172 Grigg, “Appendix: Groundwater Systems,” p. B-5. lS2 cuzan, p. 36. 173 Schilling et al., pp. xii-xiii. ls3 Howe and Easter, p. 171. 174 Wade Miller Associates, p. 79. ls4 Ibid. lss Welsh, p. 38; Rao, p. 91; Howe and Easter, p. 91. 175 Ibid., p. 115. ls6 Reisner, “The Next Water War,” p. 100. 176 Ibid p 206. A still stronger statement was made two yea; earlier in Welsh, p. 25: ls7 Howe and Easter, p. 173; Schmandt et al., p. 7. Obviously there are adequate water supplies lsa Welsh, pp. 38-40; Schmandt et al., p. 7. available in the nation, even in our most arid ls9 Schilling et al., p, 94. states, to support populations well beyond any l”) Viessman and Welty, p. 2. reasonable projections. Thus any city in the area that claimswatershortage must be admitting that 161 Wade Miller Associates, p, 12. its laws and policies are the problem. 162 Phelps et al., p. 25. lR Wade Miller Associates, p. 123. laU.S. Office of Science and Technology Policy, Federal ‘7~ ‘&hilling et al., pp. 19-20. Ground-Wafer Scienceand Technology Programs, June 1989, p. 3-2. 179 Schilling et al., p. 21.

U.S. Advisory Commission on Intergovernmental Relations 103 104 U.S. Advisory Commission on Intergovernmental Relations Chnpter 6 Modifying Intergovernmental Relations in Water Resources Management: Whether, Why, and How

Several issues and trends with intergovernmen- Much of the literature discussingwater and other tal implications forwaterresource managementwere common-pool resources divides into two general noted in Chapter 1. Among the improved techniques recommendations for organizational and legal struc- that have emerged in response to those issues and ture~ centralized public authority or privatization. trends are conjunctive management of surface and This report has recognized that water resources are groundwater supplies, and integrated management multifaceted, that conjunctive management of sur- of groundwater supply and quality Both of these face and groundwater supplies and integrated man- approaches involve considerable coordination among agement of groundwater supply and quality are very the many actors in the complex water economy complex tasks, and that diversity of organizational There is evidence of a remarkable number of state forms and jurisdictional responsibilities is part of the and local initiatives to improve water resource man- American federal system and must be taken into agement using a wide variety of organizational account The management of water resources is not forms. Federal activity has focused more on ground- organized as a centralized public hierarchy or as a water quality protection, but there are signs that a privatized, competitive market Most successful con- larger federal role in supply management is at least junctive management situations exhibit complex under consideration, and it has received Supreme mixes of noncentralized public activity and high Court authorization. Despite the innovation occur- levels of involvement by users. This report, therefore, ring in the American federal system, there remain looks beyond simple organizational models. important institutional barriers to more effective The policy debate between advocates of management, several of which have an intergovern- privatization and of centralized public management mental dimension, and in the resolution of which all will doubtless go on. However, much of that dispute is governments have roles to play. beside the point from the perspective of those engaged coordination of water resource use. Indeed, framing problems and solutions in terms of these diametrically opposite concepts may itself be a APPLYING CONCEPTS AND LESSONS LEARNED barrier to effective action. Restricting recommended This chapter attempts to bring together the solutions “to the intervention of external authority on understanding of trends and issues, and progress and the one hand and privatization of property rights on innovation in water resource management, the orga- the other [ignores] the existence and potentials of nizing concept of a complex and regulated water other solutions, including user-group or local com- economy, and the remaining institutional barriers to munity management.“’ effective management Suggestions (some in the Furthermore, experience in conjunctive manage- form of pending legislation) for modifying intergov- ment makes it plain that neither complete centraliza- ernmental roles and relations will be reviewed. Some tion nor massive privatization is necessary for effi- modifications in federal, state, and local practices to cient or equitable water use. There is a body of legal, remove impediments to improved water resource governmental, and economic experience indicating management will be outlined. that, when empowered to do so, citizens have pro-

U.S. Advisory Commission on Intergovernmental Relations 105 duced “remarkably creative achievements” in adapt- water economy. Ira Clark of the University of New ing a diversity of institutional forms to the demands Mexico wrote recently of coordinating the use of water resources.2 Effective administration is dependent on the Experience from groundwater and other com- existence of specialized institutions tailored to mon-pool resource cases “illustrates a remarkable manage water for specific purposes This inability on the part of nonseparably related decision volves mating state agencies to handle prob- makers to develop rules to mutual benefit”3 When lems of a general nature, clothing political sub- groups of resource users and decisionmakers exhibit divisions with power to act on pertinent water the ability to shape rules that produce mutually matters within their jurisdiction, providing for beneficial resolutions to resource dilemmas, the formation of quasi-public entities to man- the devolution of authority and responsibil- age local projects, and authorizing action by ity to make rules to such groups is a valuable private water companies. Congress has also policy aim. For nonseparable decisions, nei- had to mate a wide variety of administrative ther the individual nor the nation is the ap- agencies relating directly or indirectly to the propriate decision maker. . . . The two ex- management of water insofar as there is a fed- tremes that characterize the usual models of eral responsibility.5 economic policy- individual and central deci- As Susan C. Nunn concluded, given the diversity of sion making- are equally inappropriate! values and interests involved in groundwater devel- Conjunctive management presupposes a consid- opment and management, and the particularly diffi- erable degree of activity and information but not cult problems of distributing benefits and costs across necessarily any particular structure. It leaves avail- various communities of interest, an “institutionally able the possibilities of coordinating the actions of rich environment” with “institutions that relate multiple individual water users; associations of water decisionmakers in ways that generate necessary users; water supply providers and producers; those informatiorP about effects, preferences, benefits, storing and recapturing water; and agencies control- and costs, is more useful over the long term than the ling extractions and water levels, and determining implementation and enforcement of a particular rule storage and pumping rights. In other words,conjunc- on a given community at a given moment tive management leaves open the possibility of a The Scale of Decisionmaking and the Involvement “complex and regulated water economy” composed of Diverse Communities of Interest. In the discus- of many organizations. sion of the water economy, Chapters 3 and 4 drew on The American federal system likewise does not the distinction between provision and production. presuppose that the considerable division of respon- There is no a priori reason to believe that organiza- sibilities and coordination of action will assume any tional integration of provision and production is particular structural or organizational form. Thus, the consistently more efficient than arrangements American federal system also leaves open the possi- whereby providers obtain services and commodities bility of a “complex and regulated water economy” from producers. Interorganizational arrangements composed of multiple participant organizations. may involve higher transaction and coordination The question remains whether the division of costs than organizational integration but reap greater responsibilities and the coordination of activity in- gains from functional specialization, division of label; volved in a complex and regulated water economy and appropriateness of scale The r&&ive balance of represents anything more than “satisficing,” a ratio- these benefits and costs cannot be predetermined by nalization for falling short of some better form of analysis acmss the full set of possible cases organization. Strong arguments have been made for Consideration of intergovernmental responsibil- centralized public authority or privatization in water ity for conjunctive management of groundwater supply management, but there are stronger argu- supplies does raise some key issues. One of those ments for a system of noncentralized arrangements issues is the importance and effects of jurisdictional involving public and private entities in the coordina- boundaries on decisionmaking processes, as they tion of the conjunctive use of groundwater and relate to the scale of immediate involvement of surface water supplies. citizens and officials. Finding an appropriate scale of decisionmaking is challenging. Inefficiencies and The Concept of Scale, the Tasks of Conjunctive inequities result from processes that are underinclu- Management, and Multiple Jurisdictions sive or overinclusive. Underinclusive boundaries exclude persons from decisionmaking processes the Noncentralized public and private arrange- results of which affect them. Information about the ments may be preferable for conjunctive manage- preferences of the excluded persons is not incorpo- ment of water resources in a complex and regulated rated into decisions,’ reducing efficiency and equity.

106 U.S. Advisory Commission on Intergovernmental Relations Public decisions about resource management made Not only multiple jurisdictions, but nested juris- on an inappropriately restrictive scale may impose dictions, are valuable to decisionmaking about the adversities on the excluded group or result in system- management of a multiattribute resource with differ- atic underinvestment in beneficial activities. ing communities of interest Jurisdictions that encom- Overinclusive jurisdictional boundaries include pass those most directly affected by a groundwater persons in decisionmaking who are not affected by basin, for example (overlying residents who produce the outcome. This brings their preferences to bear on and consume water supplies directly from under- collective choices, and this, too, can produce less than ground), are often nested within broader jurisdictions optimal results. For instance, those who are likely to that include other users of water from nearby or benefit from a particular resource management activity related sources (who are affected indirectly by deci- and who can spread the costs to nonbeneficiaries have sions taken within the smaller jurisdiction and, if incentives to pursue overinvestment in that activity adversely affected, may exercise recourse). In a feder- Appropriate scales of decisionmaking would al system, citizens can create and alter jurisdictions for achieve as close a match as possible between those taking collective decisions and representing their benefiting from resource management and those interests, as illustrated in Chapter 3. bearing the costs. Rules arrived at, adopted by, and applied to those whose well-being is affected are Defining Diverse Communities of Interest as an “built on a better information base than if they are Emergent Process. Thus far, the discussion has imposed from outside, or if unaffected parties influ- proceeded as though “the community” (users, benefi- ence the decision.“8 Generally, “it appears that there is ciaries, taxpayers) was known and specified. This is an advantage in a rulemakingapproach in which the an easy (and often a useful) assumption to make community that will be governed by the rule is the while investigating the importance of other concepts. source of the collective decision that creates the rule.“9 What starts out as an assumption, though, can turn With particular reference to water supply operations, into a prescription. Assuming that there is “a well- appropriate boundaries are likely to yield more defined group that should be involved in rulemaking efficient pricing and full cost recovery, economies of over a nonseparable decision” can become a state- scale, and the uniting of alternative sources of ment that “all and only the nonseparably related ~upply.‘~ Compliance and consent are also more decision makers are needed for a rule that exploits the likely in communities where those affected by the full potential for improvement.“r2 decisions have been part of the process.” If the definition of the relevant “community of Of course, these general considerations have interest” (those whose interests with respect to a assumed that there are two clearly defined sets of given activity or issue are sufficiently consonant to be people-those “affected” and those “not affected” by seen as “common”) is conceived as an act that takes resource management decisions. In actual settings, place once and for all, it presupposes a level of there will be persons who are more directly affected, knowledge of present and future preferences and indirectly affected, or unaffected. Moreover, as dis- actions that is likely beyond the ken of any analyst or cussed below in defining communities of interest, policymakec The definition of communities of inter- understandings may change over time as to who is est with respect to a groundwater supply (or any other affected and to what degree by decisions about valued item) is more usefully conceived as a process. groundwater management In some cases, interests may exist but initially While this may appear to introduce an inordi- may not be perceived and included in decisionmak- nate amount of complexity into the process, all of the ing. In other cases, interests may emerge over time, considerations argue against uniting water resource perhaps even as a reaction to resource uses and management decisionmaking in a single collective management decisions taken in the pastJ3 In either arena. When groundwater and surface water re- case, as new (or newly perceived) interests become sources are used and managed together, and when apparent, they must be included in some way or quality protection decisions are related to supply losses will be incurred in efficiency, equity, com- decisions, there are likely to be multiple communities pliance, and adaptability of interest of varying sizes involved. The existence of The emergence of communities of interest can and the capacity to create multiple jurisdictions provide take time. People may not be aware of how they are opportunities that would otherwise not exist for public affected by or involved in the use or management of a decisions to be taken at various appropriate scales that groundwater resource. Groundwater basins can ex- relate to differing communities of interest This repre- tend under significant land areas, and the geohydro sents a considerable advantage of a federal system in logic conditions of the same aquifer can differ undertaking conjunctive management and/or inte- markedly from one location to another Therefore, grated management of water resources effects of activities may not be spread evenly across all

U.S. Advisory Commission on Intergovernmental Relations 107 users of a gmundwater supply: “seldom does a negative about groundwater supply management There are effect on an aquifer system touch all users equally at the efficiency advantages deriving from close informa- same time. These effects are progressive.“14 tion about groundwater and knowledge of the activi- Even within the same aquifer, interests, benefits, ties that comprise conjunctive management Specific and costs may not be evenly distributed. Sometimes knowledge about the resource is an important aid to an aquifer is great in extent and variable in its effective conjunctive management, which calls for a physical characteristics, as is the case with the Ogallala level of “artful administration” that is responsive to the Aquifer underlying the high plains. This aquifer physical characteristics of the groundwater basin, to the is not like a giant bathtub.. . it is more like an particular use patterns, and to the institutional, social, enormous egg carton, deep in some areas and political characteristics of the user communityJg and shallow in others.. . . While the aquifer as The range of particular characteristics to be under- a whole was probably being exploited at an stood for effective management of any groundwater uneconomically rapid rate, the costs of that resource is indicated by the following observation: too-rapid exploitation did not fall evenly on Gmundwater management demands an the just and the unjust alike.. . . That is to say understanding of the geologic history and the user cost was unevenly distributed across structure of the basin, and of its water carrying the farms of the high plains. l5 and water storage characteristics It demands an understanding of the hydrologic regime These users are not similarly situated, and artifi- under average and extreme conditions of wa- cially defining all of them as having a single and ter supply and the effects of artificial recharge shared set of interests because they derive their water upon that regime. Groundwater management from the “same” source may not make as much sense demands sufficiently detailed data and meth- as allowing them to define their different interests ods to support saline water barriers, artificial and providing institutional means for accommodat- recharge, and protection from polluti~n.~ ing conflicts. High-plains aquifer users may not constitute “a community of interest,” despite their This would not be an especially demandingtask, common water source. A combination of district nor would this issue relate to the proper scale of representation and administration with the develop- organization of conjunctive management, if all ment of an overlapping capacity for effecting regu- groundwater basins were alike. However, each basin lated water transfers could allow water-poor farmers has somewhat different characteristics, with varia- “to make the water-rich farmers an offer they couldn’t tions in the effects of recharge and of overdrafting, the refuse, even after accounting for the costs of trans- likelihood of quality degradation resulting from porting the water? fluctuations in water levels,climate, drainage charac- Muitiple and conflicting communities of interest teristics, overlying use patterns, irrigation practices, can thus coincide with respect to the use of the same and soil permeability? water resources. “As the nation’s waters have been There is more to this than merely observing that no two groundwater basins are alike. Take only one of more and more dedicated to specific uses, the poten- the elements of conjunctive management listed in tial for escalation in conflicts among environmental- Chapter 3 -the control of overdraft The variability in ists, ranchers, irrigators, well users, energy firms, physical characteristics of groundwater basins as cities, and industries has grown.n17 A centralized reservoirs is extremely significant for controlling administration system drives all of the conflicts overdraft In a shallow aquifer along a coastline and between these interests into the decision processes of in hydrologic contact with the ocean, any overdraft- an agency, making agency employees responsible for ing of the groundwater may result in salt water resolving conflicts and designing the trade-offs be- intrusion that degrades the quality of the water tween desired uses18 Complete privatization requires supply and renders it essentially useless. In a karst that each interest with claims on resources seek to aquifer underlying a sandy soil surface, overdrafting out-bid theothers, thus skewing the outcomes in favor beyond a certain point could result in sudden land of those with disposable assets to devote to the subsidence, such as sinkholes. In an alluvial basin not bidding war Regulated transferability under rational in contact with a salt water or other low-quality pricing may allow for the movement of water supply,overdraftingcouldcontinueforyearswithout resources among uses without the excessive presump- any harmful effects other than increased pumping tions that accompany the privatization literature,name- lifts The prospects for controlling overdraft to create ly complete and perfect information and complete and storage space for the retention of surface water flows perfect independence of decisionmaking. as part of a conjunctive management program would be markedly different in these three types of cases “Functional Fragmentation” as Functional Special- How, then, would one construct a rule for the ization. Multiple jurisdictions can enhance special- control of overdraft that would extend across basins? ization as well as representation in decisionmaking A rule that prohibited overdrafting and required

108 U.S. Advisory Commission on Intergovernmental Relations safe-yield operations would result in inefficient use Knowledge specific to efficient conjunctiveman- of two of the three types of basins described above. A agement may be attained through functional differ- rule that required overdrafting could inflict serious entiation. What appears at one level of analysis to be economic losses in two of the three basins described “fragmentation” standing in the way of efficiency above. The only rule that fits all three situations is a rule may at another level appear as “specialization” that stating,“owdnkwl;\err ?zid to the c!Y?eAt a basin is enkances efficiency. 0tcause of theimpcsitanc~ of capable of being overdrafted; otherwise, do not over- specific knowledge and the value of functional draft” This is essentially the same as no rule at aR specialization, it has been contended that “[e]ffe&ve Rules for controlling overdraft,as for implement- administration is dependent on the existence of ing recharge, regulating storage capacity and water specialized institutions tailored to manage water for in storage, and protecting water quality from degra- specific p~rposes.“~ dation as a result of management practices, must be Discussions of the appropriate scale of decision- formulated in accord with the specific character&-s making, representation and definition of communi- of each groundwater reservoir. Overlying use pat- ties of interest, and the advantages of specialized terns, which result from the interaction of economic, knowledge and functional differentiation may not political, and historical characteristics, affect these make it clear whether groundwater management is a decisions and need tobe taken into account, as welt. In national, state, or local responsibility In fact, attrib- sum, the information requirements of conjunctive utes of groundwater systems are of concern to all management of groundwater supplies are intensive governments.26 Developing groundwater manage- and highly particular. ment information systems, implementing conjunc- Furthermore, this analysis, which applies to the tive use programs, adjusting programs to changing conditions prevailing in a particular basin at a conditions, and coordinating these activities within the intergovernmental system all have different particular time, applies equally strongly (if not more appropriate scales, with roles for all jurisdictions in strongly) to changes in those conditions. Closeknowl- the federal system. This response may be disappoint- edge of changes in the physical characteristics of a ing to those who prefer the simple artswets offered by groundwater reservoir and in the overlying use the Supreme Court and others, who apparently have patterns is essential to adapting and maintaining the had no difficulty deciding “whose problem” and effectiveness of any program for coordinated use of “whose responsibility” groundwater management is. water resources.22 A priori definitions of the appropriate manage- The advantages of specific knowledge do not ment jurisdictions activities are unneeded, and pmb- relate only to water resources and their associated ably impossible to find and defend successfully Coordi- communities. Efficiency also can result from func- nating the conflicting demands on a limited but highly tional specialization that unites differentiation with variable resource in a federal system is not easy, and specific knowledge and experience. When decision- “the solution does not lie in an uncompromising grant making for a variety of functions is combined, to either the State or the federal governmerV2’ different activities compete for attention and re- A reasonable statement of the multijurisdictional sources within the organization. Gaining maximum arrangements that optimize the use and manage- advantage from specialized experience also cannot ment of water supplies is: be assured. Optimal decisions for each activity can no more be assured by an integrated organization than a) Decisions that depend strongly on close by coordination among several organizations. With knowledge of the water resource and its us- public jurisdictions especially, “the endemic condi- ers -such as allocations of water production and storage, and pricing - can best be made tion which results from co-mingled (sic) deci- by local specialist organizations (public and sion-making is one of ‘public choice failure’.“23 private) that are as nearly matched as practi- Water supply and wastewater treatment func- cable to the communities of interest tions, for example, have often been divided and performed by different entities. This differentiation b) Rules for the establishment and authority of has been criticized by some observers who have management organizations, and for the ac- suggested that the organizations should be combined quisition and transferability of production in order to promote “efficiency” However, efficiency and storage tights, can best be developed by also may be promoted by the execution of these the states in response to their individual situ- functions by separate and specialized entities As a ations, thereby retaining and encouraging recent study of water supply concluded, “there is little innovation and diversity evidence to support the assertion that U.S. systems in which the water and wastewater functions m? COm- c) Support for the information requirements- bined are more efficient than those that are not.“% in particular, basic hydrologic research, wa-

U.S. Advisory Commission on Intergovernmental Relations 109 ter resource inventories, technical assistance, Nevertheless, the management of groundwater and the exchange of information about wa- supplies necessarily includes a concern for protecting ter resources and management practices- quality The adage “quality is quantity” is often would best be performed cooperatively by repeated by water managers. With respect to ground- the states and the national government water, a 1975 bulletin of the California Department of This description, in turn, relates to the roles of these Water Resources expressed that relationship explicit- governments in overcoming the institutional barriers ly: “A basin that may be expected to be used for that remain to improved management of water thousands of years can become unusable, perhaps resources: permanently, within only a few years by deliberate or accidental pollution.“B The seriousness of groundwa- a) Local organizations should have primary re- ter contamination has multiple dimensions and is sponsibility for implementing water pricing difficult to overstate. Use of groundwater contami- practices that more accurately signal users as nated by toxic, carcinogenic, or mutagenic materials to the value of the resource, without spread- can result in adverse health effectsz9 Groundwater ing water supply development and opera- contamination can be deadly That is just one dimen- tion costs to larger jurisdictions. sion of the seriousness of groundwater contamina- b) States have primary responsibility for modi- tion, albeit the most acute one. fying their water rights laws and forempow- Even where public health may not be acutely ering public organizations to conduct con- endangered, the loss of a groundwater basin has junctive management of surface and serious economic consequences. Where local ground- groundwater supplies where conjunctive water has been contaminated, suppliers may have to management is practical and indicated. develop new sources,% any one of which is likely to be c) The states and the federal government have more expensive and less reliable. Costs of cleaning up primary responsibility for overcoming re- the local groundwater supply and restoring it to maining information barriers to the im- usable quality are likely to be as great or greater3i provement of management practices Furthermore, contamination threatens theusefulness of a groundwater basin as a storage reservoir, with Protection of Groundwater Quality: serious consequences for conjunctive management A Different Set of Roles and Relationships? While it is not difficult to conceive of the serious ness of groundwater contamination, it is difficult to In Chapter 1, the distinction was drawn between know its extent The Committee on Ground Water the conjunctive management of water supplies and Quality Protection of the National Research Council the integrated management of water quality and found “no adequate data available on a national or quantity. The management of groundwater and even regional scale to estimate the extent of ground surface water supply may or may not be coordinated, water contamination and the impactsof thiscontami- although the two often arerelated physically. Similar- nation.“% Most authorities seem to agree that the ly, the protection of groundwater quality may or may extent of groundwater contamination nationwide not be coordinated with the management of ground- remains relatively sma11?3 A 1988 report of the U.S. water supplies, although the two also are related General Accounting Office noted that “groundwater physically quality in 91.8 percent of the locations we studied As was also stated in Chapter 1, this report does surpassed drinking water standards for all substances not contain a review of local, state, and national measured. That is a positive result”34 groundwater quality protection programs. Readers Nevertheless, reports from various sources indi- interested in further pursuing the question of inter- cate that problems are sufficiently widespread and governmental roles and relations in the protection of serious to be of concern. Thus far, more than 225 groundwater quality are referred to the 1986 report of harmful and potentially harmful chemical, biologi- the Environmental and Energy Study Institute, A cal, and radiological substances have been found in Congressional Apda for Pmenfing Groundwater Con- groundwater supplies.35 Half of the states have tamhafion: Building Capcity to Meet Protection Needs; discovered pesticides in groundwatet? As of 1987, the 1986 report of the National Research Council’s more than 2m community supply wells in 34 states Committee on Ground Water Quality Protection, were closed due to contamination. And the possibilities Ground Water Qualify Protectiox Stateaml Local Stmte- for future contamination incidents are substantial: gies; the 1986 report of the National Groundwater “There are 90,000 landfills and between 1.5 million and Policy Forum, Grourdwater: Savitzg the Unseen Re- 25 million underground storage tanks in this country; source, and the 1989 report of The Urban Institute, an estimated 20 to 30 percent of them are leaking.“37 State Mmagement of Groum-lwnfer: Assessment of Prac- What renders this patchwork of figures of greater tices and Progress. concern is that areas of contaminated groundwater

110 U.S. Advisory Commission on Intergovernmental Relations generally coincide with areas of greater population 1986 report that research to develop the knowledge concentration.B Reported contamination is most ex- base for effective groundwater quality protection tensive in the Northeast,3g but there have been cases remains to be done. The committee observed: nationwide that have caused supply shortagesa A 1988 book reviewing state water policies concluded, More scientific and technical information “It is becoming abundantly evident that degradation is needed concerning the extent of ground wa- of ground water is a major problem, especially in ter contamination, its effects on health, the en- specific localities.“41 vironment, society and the economy and strat- Because of these important intersections be- egies and technologies to prevent it Also, more information is needed on the effectiveness of tween quality and water resource management generally, this section contains a discussion of some various protection pmgrams There is a need patterns in governmental roles and relationships in for understanding pmcesses, including those in the unsaturated zone.47 groundwater quality protection, which have been different from those in supply management The development of the information base concern- States and local communities have demonstrated ing groundwater contamination supports federal, state, considerable initiative in devising and implementing and local regulatory efforts and the use of the court groundwater quality protection and supply manage- system to protect groundwater quality Many individu- ment programs, but the federal government has a als harmed by contamination have sought remedies more extensive role in the protection of groundwater through liability litigation, but securing evidence has quality. As observed by the authors of a 1985 book on been a principal obstacle to their success& water management, “The trend in water qudity Federal and state efforts to improve the data rnnrzngerrzent in the United States has been toward available could assist parties in liability cases against centralization and the imposition of uniform rules,“” polluters and help resolve competing claims con- which can be seen as more appropriate than they cerning contamination incidents.49 Concern about would be in the management of groundwater sup- potential liability claims may complement regulatory plies. The reasons for the differences may be grouped efforts aimed at prevention, making potential pollut- into three categories: (1) the usefulness of uniform ers weigh their actions in light of the increased risk of standards; (2) the significant needs for technical and incurring some future penalty scientific information; and (3) the challenges faced by Implementation and enforcement of protection small water systems in meeting quality standards regulations raises another issue that distinguishes Water quality protection involves assessing risks water supply from quality protection. Proper imple- to human health for varying levels of contaminants mentation of the Safe Drinking Water Arnemlmnts of and establishing maximum levels. Some states and 1986 and the 1987 amendments to the Clean W&r-Act communities have developed standards or guide- will impose significant costs on local public water lines to ensure safe water, but it is duplicative and supply systems, especially medium and small sys- inefficient for them to do sop3 (Presumably, the health tems.% The challenges faced by small systems in risks from a given level of contaminant are the same protecting groundwater from a growing list of con- in Florida or Alaska.) taminants, in monitoring quality on an ongoing basis, The establishment of maximum contaminant and in complying with federal and state regulatory levels by the federal government “is an efficient standards are daunting and are likely to grow. (Those intervention because the information requirements challenges are referred to in the literature on gmundwa- necessary to assess subtle health risks in sufficient ter quality protection as “the small system problem.“) depth to evaluate alternative levels of protection are Small water systems do not present a problem as enormous.w4 Although a few states have devoted providers per se; it is their capacity to perform the substantial resources to health research and sophisti- range of tasks associated with protecting quality that cated standard-setting procedures, as a general mat- has been drawn into question. The two principal ter, “the states do not usually conduct their own obstacles are the lack of technically expert personnel research to develop information on toxicology or on and lack of access to sufficient financial capital.5l This the risks of groundwater contaminants to health. is true of smaI1 local systems even in economically They rely instead on information from the federal prosperous regions. 52 “EPA officials have consistently government”& Some of that information has been stated that small water systems deserve a higher forthcoming, but “much of the basic scientific knowl- priority on the environmental agenda within the edge needed to develop policy does not yet exist.“% Agency, and that the small water system problem is The appropriate scale for such research and develop- the greatest impediment to successful implementa- ment is nationaL tion of the SDWA Amendments”53 The National Research Council’s Committee on Since the states are responsible for implementing Ground Water Quality Protection concluded in its the drinking water amendments, the “small system

U.S. Advisory Commission on Intergovernmental Relations 111 problem,” which is basically one of implementation, community”5B The forum also recommended that all becomes a problem for state governments as well as states enact groundwater quality protection legislation EPA. States have a number of options One is to grant incorporating the following ten components: some flexibility in compliance schedules to ease the 1) Comprehensive aquifer mapping including financial burden on small systems, in exchange for associated recharge and discharge areas; financial reforms to address their chronic undercapi- Aquifer classification; talization problems.% Another option is state finan- 2) cial assistance to help bring small systems into 3) Ambient groundwater standards; compliance with the standards. Typically, such assis- 4) Source control authority; tance is provided directly through grants and loans or Monitoring, and data collection and analysis indirectly by backing local attempts to gain access to 5) pqvw financial capital with the credit of the state.5s Some states have encouraged and facilitated mergers and 6) Effective enforcement provisions; takeovers of undercapitalized small systems or regio- 7) Surface use restrictions to protect groundwa- nalization schemes that could facilitate “pooling” of ter quality; public water supply system reso~rces.~ 8) Programs to control groundwater withdraw- The combination of groundwater quality protec- als to protect groundwater quality; tion tasks-development of standards or guidelines 9) Coordination of groundwater and surface for maximum contaminant levels, development of water management and the information base for regulatory and enforcement action, and the compliance challenges faced by 10) Coordination with other natural resource smaller systems - produces a different set of intergov- programs. ernmental roles and relationships than is appropriate The forum recommended further that federal law for managing water supplies and developing con- condition future receipt of assistance by states in junctive management More of the decisionmaking, groundwater remediation under the Superfund pro- information gathering, and financing for water qual- gram on adoption of quality protection programs ity protection, whether for groundwater or surface containing these elements, with the first six required water, is of state and federal scope. as “the essential core of a comprehensive program.” During the 198Os, other groups of public officials, The most thorough proposals, addressing the water administrators, and policy analysts reached goals, the implementation, and the appropriate fed- similar conclusions about the appropriate state and eral, state, and local roles and relations in groundwa- federal roles and relationships in groundwater quali- ter quality protection, are to be found in the 1986 ty protection. A policy position adopted by the special report of the Environmental and Energy National Governors’ Association in 1981 called not so Study Institute, titled A Congressional Agerrda to Prevent much for new laws and regulations as for greater Groundwater Contamination: Building Capacity to Meet emphasis on federal and state enforcement of exist- Protection Needs. A brief and necessarily incomplete ing laws, with more federal research on contamina- summary of the Institute’s findings, conclusions, and tion sources and their associated health effects, and recommendations follows: increased state applications of the information and 1) A massive, new federal groundwater pro- guidelines5’ The governors called for a “new environ- gram along the lines of the Clean Air and mental partnership” between the states and the federal Clean Water programs of the 1970s is not government in gnnmdwater quality protection needed, probably could not be crafted, and In 1983, the National Governors’ Association would not work joined with the Conservation Foundation to develop 2) The local nature of the groundwater re- the National Groundwater Policy Forum, chaired by source, and of contamination problems, former Arizona Governor Bruce Babbitt The 17- must be recognized, respected, and taken member forum was composed of three governors, into account, as should be the historical pri- three chairmen of major corporations, the directors of macy of the states in the management and three major environmental groups, other state officials protection of groundwater resources and a county executive, and groundwater mseaichers The forum also endorsed the “new environmental 3) A restrained, phased, and nontraditional re- partnership” concept Among the forum’s conclusions sponse is called for, stressing federal leader- was that groundwater protection would require high ship, not regulation; real state flexibility, not levels of federal, state, and local coordination to “take rhetoric; and state and local decisions, not advantage of the management capacities of different deferrals. units of government as well as engage the active 4) The proper federal role involves the estab- cooperation of the private sector and public interest lishment of a national goal of contamination

112 U.S. Advisory Commission on Intergovernmental Relations prevention, financial and technical support supporting research and development and providing to the states for the development of their own technical assistance; a state role of developing and programs, leaving the states the real flexibil- implementing groundwater protection programs, ity and authority to do so, assisting state and lo- and coordinatingorintegratinggroundwaterquanti- cal decisionmakers with the information that ty management with groundwater quality protec- could improve decisions, and getting the feder- tion; and a local role in making responsible land use al government’s own house in order through decisions that protect groundwater supplies from more effective and coordinated implementa- further degradation. tion of existing authority and thmugh changes in other activities to bring them intO line with Addressing the Issue of Nondegradation. An ob- the national prevention goal. vious issue that arises in connection with water quality protection standards is where to set them. A 5) The federal information gathering and tech- less obvious but equally crucial related issue is the nical assistance program should have a des- underlying criterion for quality protection. The issue ignated lead agency (U.S. Geological Sur- has come down to the following basic question: vey), and should include a groundwater should a nondegradation policy be adopted for information clearinghouse for federal, state, groundwater supplies? local, and private decisionmakers and con- A U.S. General Accounting Office report issued cerned citizens; the emphasis of federal re- in 1988 observed that nearly all of the states that set search efforts and funding on remediation numeric groundwater standards simply adopted EPA and cleanup of contaminated sites should be maximum contaminant levels for drinking watec supplanted by research and demonstration However,because so much of the nation’s groundwa- efforts directed toward prevention, ter is so pure, adoption of EPKs levels “would allow 6) States should pursue the possibility of develop- the potential for degradation of a considerable ing protection goals stronger than the federal amount of groundwater (to the level of contamina- goal; states should be free to consider natural tion allowed by drinking water standards). That is, groundwater quality vulnerability of various contaminant levels might gradually increase to about aquifers to contamination, and uses of aqui- that allowed by the standards”59 This poses a poten- fers, but aquifer classification systems should tial problem in areas where groundwater contributes not be mandated; state quality protection pm- to a surface water supply that supports sensitive grams should be encouraged through devel- species of aquatic life, the survival of which might be opment and implementation grants, rather jeopardized by levels of contaminants deemed safe than mandated with threats of funding losses, for human use and consumption. The drinkingwater in order to encourage rather than disrupt the standards tend not to be as stringent as EPA and extensive state initiatives National Academy of Sciences guidelines for the protection of aquatic life. Furthermore, EPA maxi- 7) Local governments would bring the preven- mum levels have not yet been established for all tion of groundwater contamination to a prior- identified groundwater contaminants. ity status in making local land use decisions, in Some environmental advocacy groups, such as order to ensure that contamination sources an2 the National Wildlife Federation,@ have endorsed the kept away from recharge areas; planning and concept of nondegradation as the proper goal for zoning of land uses are among the most effec- gmundwater quality protection. They point out that the tive tools for the prevention of groundwater proper purpose of federal and state policy should be the contamination, and those tools are for the most protection of the resource, not the protection of certain part in the hands of local officials “uses” of the nzsource, which change over time. 8) The private sector should be encouraged to Accordingly, a bill introduced by Sen. Dave Duren- develop and deploy protective technologies berger of Minnesota would requk states to adopt andpractices,especiallywith regard towaste nondegmdation standards for all gmundwater re- disposal and agricultural chemicals. sources On the other hand, other environmental advocacy groups, such as the Conservation Foundation, A similar position on appropriate intergovern- recommend that states adopt aquifer classification mental roles and relationships in groundwater quali- schemes EPA’s groundwater protection strategy, ty protection was adopted by the Association of State adopted in 1984, included guidelines for the classifi- and Interstate Water Pollution Control Administrators cation of groundwater, with different levels of protec- in 1983 and was revised in 1987. The agenda calls for a tion for each of three classes.6l Class I is a strict national goal of protecting human health and the nondegradation category for irreplaceable drinking environment by preventing and mitigating groundwater sources and for aquifers connected with sensi- water pollution wherever possible; a federal role of tive and ecologically essential life. Class II includes

U.S. Advisory Commission on Intergovernmental Relations 113 current and potential sources of drinking water, and States have been experimenting with aquifer waters having other beneficial uses. Class III ground- classification and protection limits For example, water is nondrinkable in its existing poor-quality Wisconsin’s 1984 groundwater protection law estab state, and is isolated from Class I or II aquifers. lished a uniform protection standard rather than an Groundwater protection does not exist in a aquifer classification system or a nondegradation vacuum, but in a policymaking context that includes standard. Then Governor Anthony Earl commented, ordinary uses and waste disposal needs. Almostevery “We don’t use all of our aquifers for drinking water at use of water results in some change in its character, this time, but we see no mason to write any of them off and some form of biological, chemical, or thermal by giving some of them a different or lesser level of deterioration. An advocate of a “limited degradation” protecti~n.“~ The law provides for two levels of quality approach observed, “Pristine purity in developed standards, a lower “preventive action limit” for each areas probably cannot be maintained. The objective is contaminant to trigger remedial action, and a higher to keep deterioration within acceptable limits.“@ “enforcement limit” to protect public health, based on In contemplating the desirability of a nondegra- federal drinking water standards, where available. dation standard in light of the need for waste disposal While the Wisconsin law provides uniform stan- sites, an important question is whether it is consistent dards for all aquifers, those are not nondegradation with proper groundwater management to allow standards. In Governor Earl’s words, “Though we some aquifers to experience additional degradation would like to adopt absolute nondegradation, we in quality. There also are two subsidiary, and rather think that is an ideal not achievable or measurable.. . . different, questions. The first is whether it is accept- It seemed to us, to be as practical as we could, that able to dedicate areas containing unusable ground- some degradation will take place and our efforts water to waste disposal, thereby causing the further ought to be aimed at minimizing it or eliminating it to deterioration of those supplies. The second question the extent possible.“” is whether it is acceptable to dedicate areas contain- Wisconsin‘s response to groundwater contami- ing usable groundwater to waste disposal that would nation is one example of a fundamental shift that has render those groundwater supplies unusable.63 Aqui- occurred in the states on issues of environmental fer classification schemes can be designed to allow protection. The dairy industry and the brewing these questions to be answered affirmatively, or to industry, which are dominant contributors to the allow an affirmative answer to the first and a Wisconsin economy, both rely on supplies of clean negative answer to the second. groundwater and also contribute to contamination Resolving the issue of nondegradation versus problems. These industries, along with concerned limited degradation on a national scale presumes that citizens, legislators, state agencies, and the governor, it is possible to be certain that one approach is participated in the development of the law. A new preferable. The information required to make such a Iowa groundwater protection law toughens regula- judgment is not available, but state groundwater tions and raises fees on the use of pesticides by the quality protection programs will add to the store of farm sector, which is the dominant sector of the state’s knowledge and experience on this question. Mandat- economy and politics. In New York, the members of ing either nondegradation or aquifer classification the Long Island Association, the major business across the states forecloses avenues for innovation. association on the Island, ranked water quality as The Environmental and Energy Study Institute their number one concern in locating and operating a concluded in its 1986 report that there was no business there, even ahead of energy costs and solid consensus on the issue of nondegradation versus use waste disposal. These and other examples from protection goals, that each perspective “has distinct around the country suggest that old assumptions that advantages, and distinct disadvantages,” that each state and local officials would sacrifice environmen- “would be expensive and difficult to implement,” and tal quality and their citizens’ health for the sake of that the debate “over these divergent management appeasing the dominant sectors of their economies, philosophies is likely to be long and divisive.“@ The or attracting businesses to their states and communi- institute’s recommendation was a national goal of ties, are simply no longer borne out by evidence, at preventing groundwater contamination “to the max- least with respect to water quality imum extent possible.” Another possible resolution was offered by the National Groundwater Policy Summary: The Limits of “Quality is Quanti&” Like Forum, which supported a sort of compromise goal most cliches, “quality is quantity” remains in use “to protect the physical, chemical, and biological because at one level it is unarguably true. Yet, that old integrity of the nation’s groundwater resources and adage is of little use in telling us whether it is ensure that they are not degraded in any way that necessary or desirable to organize groundwater qual- may be harmful to humans or the environment” ity protection and supply management together,

114 U.S. Advisory Commission on Intergovernmental Relations whether to unite the legislation and regulations that which assessments have not been completed and for affect both, how to go about acquiring theknowledge which maximum levels have not been published. As needed for sound decisions, and how to connect the we have learned more about groundwater contamina- information and decisions about groundwater to sur- tion, the list of contaminants about which citizens and face waters The management of groundwater supplies public officials are concerned has seemed to expand in a well functioning federal system increases citizens’ mane rapidly than the research and guideline pmcess opportunities for addressing those issues in various Lack of knowledge, and of knowledge dissemi- combinations and learning and adjusting. nation, plagues groundwater quality protection just There is no reason to limit-and good reason not as it does supply management, although the needs to limit-the variety of organizational approaches are not identical. Quality protection raises such citizens and public officials may devise. Some states questions as: How do contaminants move through and communities have integrated groundwater sup- groundwater? How can contamination be pre- ply management and quality protection, while others vented? How serious is the contamination, and what have kept the functions separate and still others have are its impacts? How has regulation fared thus far? pursued regional cooperation for quality protection Local, state, and federal gnnmdwater protection activi- while organizing supply management principally ties have unfolded in the midst of these uncertainties, on a community scale. and been shaped by them. State and local approaches to quality protection also have varied. Wellhead protection programs,land In such uncertain circumstances, policy use restrictions, conditions on the transfer of real formulation has been groping towards a bal- estate, and a host of other methods have been part of ance between strict @ation and environ- the arsenal of state and local assaults on groundwater mental degradation. Lessons learned from ear- degradation. This is consistent with the conclusion of lier enthusiastic attempts to regulate air and the National Research Council’s Committee on surface water have prompted a more cautious Ground Water Quality Protection: approach.. . . Considering the uncertainty associated with current unde&anding of gnnmd- It is apparent that ground water issues wateq its protection, and its conservation, this and conditionsvary from state tostate and re- would seem an appropriate approach to take. flect differences in the states’ physical,social, Such an approach could, however, degenerate and political makeup. As a result, no single into aimless policy making often working at strategy for dealing with ground water pol- -purp=@ lution problems can be recommended for all statesorareas.Eachstateorlocalstrategywill It is vital that federal officials not allow research necessarily reflect the local situation.67 and standard setting to degenerate. It is equally vital that states and localities, regardless of whether they Remedies for groundwater contamination also combine quality protection and supply management vary. Some contamination problems have had seri- into a single piece of legislation or a single adminis- ous local impacts but also “exhibit a high degree of trative agency, maintain coordination and not allow site-specific characteristics and have required the program development and implementation pmcesses application of highly nonuniform remedial strate- to degenerate. In fact, when the policy mponse of the gies.“@ In a federal system, this variety in the ap- federal government is to tell states and local govern- proach to specific problems is intrinsically desirable, ments what to do and have them implement and pay to be valued in and of itself; it is, indeed, one of the for it, the quality of gmundwater protection programs principal reasons for having a federal system. will depend as much or mow on the states and local Two other important elements in fighting communities as on the federal governmentTO groundwater contamination are the development of Keeping policymaking from degenerating into information about quality and contamination, and aimlessness and working at cross purposes is ex- the use of basic and applied research into risk tremely difficult when citizens and public officials assessment and health effects to develop guidelines are not entirely sure of what is going on; information for specific contaminant levels. The appropriate scale and coordination costs are high. Nevertheless, the for these two functions is national, and the federal stakes for public health are even higher, and as government should maintain its leadership in re- citizens and public officials realize, the continuation search and the setting of waterquality and guidelines, of successful experimentation and innovation in in the interest of health. groundwater management depends on protecting Much remains to be done. As the list of contami- theirgualip “Qual~jsq~an~~” n~~~d~~~ve~~~g~u~~wafer suppfies increases, hey must be mm3 by the sane statute or be the so does the task for the Environmental Protection responsibility of the same administrative unit (al- Agency. There are several known contaminants for though these are options). It does mean that there is a

U.S. Advisory Commission on Intergovernmental Relations 115 contingent relationship between the two, and failure dent Carter’s proposal would have aided the cause of to protect quality injures the complex water economy improved management of water resources by remov- that provides and produces water supplies. ing some of the uncertainty. Under current U.S. Supreme Court interpretation, the federal government has the constitutional ENDING SUBSIDIES, INCREASING INFORMATION, power to regulate groundwater supplies directly AND SUPPORTING QUALITY PROTECTION: through the Commerce Clause. The question of federal exercise of that power remains open. Contem- WHAT THE FEDERAL G OVERNMENT CAN Do plation of confrontations between federal and state We have reviewed the historical and current role regulatory power casts the question of power in of the federal government in water supply and “winner-take-all” terms. On the other hand, “if the quality protection, and some of the institutional question is not the existence of power but the barriers to more effective water resource manage- desirability of its exercise,compromise and accommo- ment, including some in which the federal govern- dation are more likely to be achieved.“R Thenz have ment is involved. In this section, we review some been “several instances” where the “Conm has suggestions for the federal role in improving water chosen to use less than all of its powers, and has elected resource management to rpcognize statecreated rights even though it was under no constitutional obligation to do so.“* In the Supporting Certainty in Water Rights and State aftermath of the Spo&.se decision, it remains to be seen Authority. Certainty in rights is a component of im- whether stateaated rights and regulations regarding proved water resource management that has been groundwater supplies will be added to this category. endorsed for decades The federal government has a In the view of one observer, “the general frame- role to play in eliminating uncertainty about federal work for the regulation of water supplies. . . is still reserved rights, about state authority to establish and intact. Interstate compacts and equitable apportion- enforce rights, and about the prospect of direct federal ment statutes may well withstand the Sporhase deci- management of groundwater supplies under the Com- sion.“74 And, at least during the Reagan administra- merce Clause authority granted in Sporlme v. Nebraska. tion, executive branch officials indicated that the The existence of unquantified federal reserved Sporltase decision would not alter federal agencies’ water rights compounds planning and management actions regarding groundwater managementE In the difficulties facing states, local governments, and aftermath of Sporl~use and Garcia, states and local water users. “In some instances, Federal officials governments wilI have to rely on the continuation of refused to disclose their existing uses of water and such federal fotiarance in order to maintain their were also claiming reserved rights to future uses of primacy in the management of gmundwater supplies water In any amount necessary to serve the purposes of withdrawn Federal lands.“?l Ending the Flow of Subsidies. There has been Initially, sovereign immunity appeared to bar the concern about the distribution of the costs of federal use of the courts by the states to obtain judicial water projects since the 1930s,76 and the attitudes of definitions of rights. The sovereign immunity of the federal policymakers have shifted. In the early de- United States in suits involving water rights was cades of this century, water projects for flood control waived, however,under the provisions of theMcCar- or agricultural development were considered to be ran Amendment to the Justice Approptiafion Acf in sufficiently “in the national interest” to justify the 1952. After the Arizona v. California and Cappaerf v. assumption of a large share of the costs by the federal hifed Sfafes decisions revealed the full scope of government In recent years, many policymakers federal reserved water rights,states have sued to force have embraced the notion of “user pays the costs.“R federal agencies to disclose and quantify reserved This is due partly to a recognition of the implications water rights. This approach, while effective on a for water resource management, i.e., that federal case-bycase and basin-by-basin basis, is certainly mom pricing of water “at full cost, rather than subsidizing it, costly than an act of Congress directing all federal would give further incentives for efficiency”“? But a agencies to disclose and quantify all reserved water mater share of the shift appears to be due to the rights, based on the Utrifed Sfafes v. iVm A4exico criterion recognition of the connections between selling subsi- of specific needs essential to the planned use of the land dized water and the continued overproduction of In his statement of national water policy in 1978, surplus crops, with its attendant increased cost of farm former President Jimmy Carter called on federal programs in a time of strained federal fiscal resources agencies to quantify and report their reserved water The Congress addressed the problem in 1982 rights as quickly as possible. Despite the passage of 12 with the Recln~ntiorr Reform Act, an attempt to years, uncertainties remain about the reserved rights, implement fullcostpricingof Bureau of Reclamation and about Indian water rights in particular. The water delivered to irrigators and irrigation districts analysis in this study supports the notion that Presi- that renegotiate their contracts in order to take

116 US. Advisory Commission on Intergovernmental Relations advantage of the new, higher limitation of 960 acres. This should not be overinterpreted to mean the Implementation, including publication of the new imminent demise of the Bureau of Reclamation; as of full-cost pricing structure (which could raise the price 1987, the bureau’s agenda included 68 ongoing of bureau water to irrigators by fivefold or more), has building projects, which aR anticipated to keep the been delayed,79 and the announcement in 1989 of the bureau active into the 21st century. planned renewal of the Orange Cove Irrigation Asthe198Osdrewtoaclose,itappearedtomany District contracts offered little hope that the bureau observers that, “with the exception of Federal and the Interior Department will use water contracts projects now nearing completion, there will be few to try to improve conservation or efficiency? if any additions to the irrigation infrastructure.“g&P The Congress revisited the issue of pricing in As the federal government disengages, states and 1986, when a compromise allowed “what will prob- local governments that wish to develop additional ably be the last” major surface water supply and flood water supplies through construction of physical control project, the Garrison Diversion Unit of the facilities will have to undertake such projects on Pick-Sloan Missouri River Basin Program, to pro- their own.& If federal disengagement means re- ceed?* Some of the controversy concerning the duced subsidization and increased attention to Garrison project centered on the problems of provid- managing water supplies, efficiency and equity in ing subsidized water for the production of more water resource use may be enhanced.& surplus crops. When it appeared to be settled that farmers who used Garrison water to grow surplus Imposing Federal Conditions on Water Subsidies: crops would pay a 10 percent surcharge, an amend- The Reclamation States Groundwater Protection ment offered by Representative Phil Sharp of Indiana and Management Act. There may be an effort to use proposed to make those farmers pay full-cost prices federal financing of water projects as leverage to for that water. The amendment was defeated on the require states to develop federally approved ground- House floor, but by only 4 votes (203-199).82 water supply management programs. The subsidiza- The Garrison project, expected to cost approxi- tion of water supplies is connected with the federal mately $1 billion, has been anticipated for a long time. government’s constitutional spending power In the Rep. George Miller, California, of the House Commit- water resources field, Um?ed States v. Gerlach Livestock tee on Interior and Insular Affairs, stated that the C~JX@’ upheld the federal Central Valley Pmject in length and strength of pa&t commitments to the California as a valid exercise of the spending poweq project were primarily what had kept it moving which allows the federal government to condition forward. Upper Missouri River Basin states have expenditutp of funds on beneficiaries’ compliance with acceded to many changes in the project, including its federal regulations, or; as the Supreme Court stated, “to overall scale and a shift in the primary emphasis from @te that which it subsidizes”sB irrigation to municipal, industrial,and rural domestic The potential scope of the spending power and uses. Whether or not it is “the last? major federal water the General Welfare Clause (in addition to congres- project in the West, the Garrison project is viewed by sional power over navigable streams) were indicated the Upper Basin states as only fair, in light of their by the Supreme Court in Arizona v. California (1963)Fg earlier cooperation in abandoning the development In that case, the Court appeared to hold that, as part of of hundreds of thousands of acres of prime farmland its power “to regulate that which it subsidizes,” the for the sake of supplying water flows to Lower Congress could direct the Secretary of the Interior to Missouri River Basin areas, where federal irrigation apportion the waters of the Colorado River not only and flood control projects have been built. between the states through which it flows but among In addition to moves to operate the projects on the water users within the states Although it has not something closer to a user charge basis, there is a been died on, the Arizona v. Calijinxia decision in- broader trend toward federal disengagement from creased the “Congn3s.3 authority over the West% water water development project financing and construc- courses.. . by a quantum jump,” and was “a monumen- tion. Federal financing was at a virtual standstill from tal victory for advocates of national contmL”m 1976 to 1986, and even the passage of the Wafer There is now at issue the possibility of the Resources Development Act of 1986 has not reversed the Congress conditioning funds for reclamation projects overall trend. in the western states on their adoption of federally With the exception of the Upper Missouri River approved statewide groundwater management stat- Basin, the major developments anticipated to be part utes. The idea apparently derives from the experience of the reclamation program have been or are being of the 1980 Arizona Groundwater Management Act, completed. Western rivers such as the Columbia and where threats from the Secretary of the Interior to the lower Colorado are now “one mrvoir after withhold the construction of the Central Arizona anothet”@ The Central Arizona Project is essentially Project contributed to the passage of the statute: “The completed, and the Central Utah Project is underway. history of federal intervention in Arizona groundwa-

U.S. Advisory Commission on Intergovernmental Relations 117 ter management illustrates both the federal govern- have overdrafted their local water supplies irrespon- ment’s interest in groundwater management and its sibly and excessively. ability to pressure states to manage groundwater That frustration, in the Congress and the execu- resources in line with federal policies.“91 tive branch, is of long standing. The National Water Criticisms of any federal attempt, through direct Commission’s 1973 report expressed the following regulation under the Commerce Clause or indirect concern about extended and unregulated practices of influence using the spending power, to write and groundwater mining adopt a uniform federal groundwater code have The Federal concern here arises not so appeared in the literature for decades. As Charles much from the fact that the resource may be Corker wrote in 1957, “one can scarcely conceive of a ultimately depleted, although that is a prob- federal ground water code applicable to an entire lem, but from the fact that thedepletion is un- region of the United States.“% In the view of most planned, and the future is not provided for. observers and analysts, “[florced uniformity in water As disaster approaches, the Federal Govern- regulation is impractical in states with divergent ment is likely to be implored to step in with a water resources and needs.“= Furthermore, as Norris rescue project, commonly conceived as one Hundley observed, there is some disparity between to furnish a supplementary water supply at the Congress’ power to impose a uniform system of taxpayers‘ expense to save an established water law and its ability to devise an optimal system economy, an economy that became estab- of water law within the nation. lished in the first place by imprudent over- In 1973, the National Water Commission rejected use of ground wateP the idea of “a uniform national ground water law., . because of the great variety in aquifer characteristics, The commission therefore recommended that federal in legal regimes allocating the resource, and in the agencies planning water projects should “describe economic and social milieu in which the uses take and evaluate the ground water management pro- place.“” The commission instead addressed recom- grams in the area,“* and that the Congress “should mendations to the states for improving use, particu- scrutinize closely the economic justification forwater larly urging the creation of “agencies fully empow- supply projects designed to supply supplemental ered to effectuate conjunctive use” of surface and water to areas that have mined ground water . . . groundwater supplies.95 including the presence or absence of ground water The imposition of a federal groundwater code on management, and their operation.“100 More recently, in 1985, Zachal y Smith predicted: the entire country, or even a particular region, appears unlikely in the near term. What is more likely It makes little sense for the federal gov- is the use of the spending power to require states to ernment to rescue localities unwilling to adopt laws that fit some model state groundwater manage their groundwater resources effi- code, first in one region and then to each state. A ciently . . . To the extent that federal water bill -“The Reclamation States Groundwater Protec- projects are designed to mitigate the effects tion and Management Act” -was introduced in the of overdrafting, it is likely that, as a quid pro 100th and 10lst Congresses by Representative Miller quo for federal assistance, improved ground- and is planned for reintroduction in the 102nd water management would be required.lO* Congress. It would condition the receipt of reclamation contracts and funds for federal water projects by Introducing the “Reclamation States Groundwa- ter Protection and Management Act” in 1987, its any of the 17 western “Reclamation States” on the sponsor stated: adoption and implementation of a statewide groundwater management program that would meet desig- This is the best way to make sure that nated federal criteria. The bill focuses on the reclama- Federal water project construction dollars tion states, but questions and testimony at are not continually poured into States to cor- subcommittee hearings indicated that the extension rect ground water problems -problems that of the bill to the West was seen as a first step toward should not or would not have occurred if similar legislation with a national scope?6 ground water programs had been in place.. . . The concept and motivation behind such a ?gxpayers’ dollars should not be spent to condition are clear. The concept is to use a federal build new projects to correct ground water “carrot and stick” approach to induce improved problems which would never have devel- policymaking from thestates9’The principal motiva- oped in the first place if adequate protection tion is an understandable frustration on the part of programs had been in place.. . . federal policymakels with the use of federal water This large infusion of money into struc- supply projects to “bail out” states and localities that tural solutions to ground water overdraft

118 U.S. Advisory Commission on Intergovernmental Relations problems has not led to solutions at all. nation or pollution problems which should be re- Ground water overdrafts continue to be ma- solved.” The secretary assesses the adequacy of those jor and serious problems throughout the states’ groundwater management and protection West Ground water pollution and contami- programs in light of the criteria, with notification to nation are growing threats. We need solu- the states The Bureau of Reclamation is then prohib- tions other than more dams. We need effec- ited from obligating or expending reclamation funds, tive programs to manage and protect our or entering into contracts, in any state identified as water supplies. This bill will provide the having deficient programs. mechanism and the assurance we need that Furthermore, the secretary will review reclama- our ground water is protected and that we tion states’groundwater protection and management aren’t wasting taxpayer dollars on unneces- statutes and programs. The states’ programs are to be sary water projectslE reviewed for “substantial compliance,” although the Act specifies that they must contain at least elements (a) The version of the bill introduced in the 1Olst through (i) in order to be the approved. States are Congress provided that within one year of its enact- required to review their approved programs at least ment, the Secretary of the Interior is to publish the once every five years, with opportunity for public criteria for assessing groundwater protection and comment In addition, the Secretary of the Interior is management programs in the reclamation states. dimted to review state programs at least once every Those criteria are to specify at a minimum, that states five years, including implementation and compliance. have: Pieviously awarded approvals may be removed, sub- 4 Programs to ensure that the quality of gnnmd- ject to notice to the governor and time to bring the water will not be degraded in any way harm- pmgrams or their implementation into compliance. ful to human beings or the environment; The proposed legislation does not specify any state’s groundwater management laws or programs W Comprehensive mapping of aquifers and their recharge and discharge areas; as a model. However, the background and motivation of the bill, and comments made by its sponsor in the d Systems of aquifer classification; House, make it clear that the experience of the federal 4 Authority for regulatory and management government with Arizona and the adoption of the controls on sources of groundwater contami- state’s 1980 Groundwater Management Act, are and nation; would be regarded as a model for the reclamation states and the Secretary of the Interior to follow. e) Programs for groundwater monitoring, data The first round of subcommittee hearings on the collection, and data analysis; bill featured the first two directors of the Arizona 4 Provisions for effective state enforcement of Department of Water Resources, Wesley Steiner and groundwater protection and management Kathleen Ferris, testifying about the adoption and the laws and regulations; content of the law. In addition, the sponsor of Programs to regulate or manage groundwa- reclamation states act made the following remarks ter withdrawals so as to protect supplies and with its introduction: their quality; This is not the first time this sort of approach has been used. In fact, the Interior De- h) Programs to protect and enhance integrated and conjunctive use of groundwater and sur- partment threatened to stop funding the Cen- face wateI; tral Arizona Pmject (CAP) because the ground water problems in the State were severe, and 0 Programs for public participation in pro- little was being done to remedy the problem - gram development, except, of course, to build the CAP project i) Authorities for imposing surface-use restric- Arizona responded quickly and very tions in order to protect groundwater quality ably to the challenge from the Department of and quantity; the Interior. It now has a progressive and k) Coordination of groundwater programs with far-reaching ground water program. I view other relevant natural resource programs; and these actions by Arizona as amodelfor other recla- programs for cleanup and emergency re- mation States with ground water problems?03 sponse to gmundwater contamination that poses an environmental or health hazard Just as there would be serious problems with applying a uniform federal groundwater law to the The legislation directs the Secretary of the Interi- states, there are problems with applying any single orto identify the reclamation states that have, or could model of groundwater management Furthermore, have, “significant ground water overdraft, contami- even if one were to adopt a single model, there are

U.S. Advisory Commission on Intergovernmental Relations 119 serious questions about the appropriateness of the merits are unable to accommodate and resolve con- Arizona approach for other states As Wesley Steiner, flicts among competing users103 the first director of the Arizona Department of Water Arizona adopted a regulatory approach to Resources under the 1980 law, wrote: “The water groundwater management, especially with respect to situation in each of the westemstates is unique to that the reduction in water demands imposed by irrigated state. The water situation in Arizona, the serious agriculture. The statute provides for the collection of imbalance between supply and consumption, is the taxes on groundwater pumping to create a fund with worst in the West and demnnds the hrshesf uppmd~.“~~ which the director of the state Department of Water Requiring all states to adopt minimal groundwater Resources may purchase and retire agricultural lands management provisions would raise substantial after 2006. The problems with this approach are enough questions of federal comity Requiring all twofold. First, the law does not allow water rights to states to adopt legislation based on “the harshest be transferred independently of land ownership. approach,” raises even more serious questions. This has resulted in the widespread use of the practice Comprehensive statewide groundwater man- known as wwater ranching,” which means that mu- agement legislation faces considerable obstacles of nicipalities and other public water supply providers implementation and public acceptance compared buy up large tracts of land to capture the appurtenant with step-by-step approaches. A 1988 review of state water rights This imposes a considerable inefficiency water policies noted that that would be avoided by making water rights transfer- despite attempts by some states to enactcom- able apart from land ownership. It also robs agricultural prehensive water management plans, this producers of any incentive to improve the efficiency of has not always led to the most effective and irrigation practices in order to profit by the sale of water far-reaching policies In fact, most attempts rights fmd up by the conservation. to enact and later implement such plans may Second, the statute places all purchase and have the opposite effect, as opposition retirement of the agricultural lands in the hands of the groups either impose compromises upon director of the Department of Water Resources, and these plans prior to enactment or subject postpones any such purchases until 2006. Presum- their provisions to judicial review during im- ably, owners of agricultural lands and their appurte- plementation . . . implementation is often nant water rights will have to take the offered price more difficult than enactment.la5 for their lands, when they might have made more beneficial sales in a more open setting. These general statements are consistent with The statute seeks to reduce water use in the observations made about the first few years of interim by imposing increasingly stringent conserva- implementation of the 1980 Arizona law. The deputy tion rules in active management areas, whether for director of the Department of Water Resources noted municipal, industrial, or agricultural use. If water that deadlines for filing water rights claims, deter- rights transfers were allowed in the interim, thereby mining water rights, and developing initial rules moving water from lower valued to higher valued were missed, not by weeks or months but by years, uses and givingusers a conservation incentive so as to and that the Act generated “a swarm of proposed have water rights to trade, neither the stricter legislative amendments . . . [many] intended to let a across-the-board conservation regulations nor the user or group of users escape the restrictions of the purchase and retirement of agricultural lands by the Code.“lN The Arizona approach contrasts with that of state might be necessary by the 21st century, Oklahoma, which has enacted groundwater legisla- The groundwater management act was the tion that is admittedly less comprehensive and restric- choice Arizona made in response to the realities of its tive, but where state planners have chosen to im- water situation and the pressures from the federal prove groundwater management incrementally, government The point of the preceding paragraphs securing acceptance for each new statutory or regula- is not to criticize the law, which is a widely acknowl- tory change before proceeding with the next.*” edged and highly regarded innovation. However, Arizonans have been less than enthusiastic about caution should be used in consideration of this law as recommending the extension of the law to other a model for other states. states, and have subjected it to rather severe criticism. The frustration of federal policymakers at being Arizona’s 1980 comprehensive groundwater man- repeatedly requested to “rescue” states and localities agement code has been described as “a testimony to with federal water supply projects is understandable. how wrong things can go when an inappropriate Aresponse that requires all states to adopt groundwa- water law is coupled to a severe case of overdraft,“‘@ ter management programs that meet federal criteria, and an example of how an”inefficient mechanism.. . that are approved and periodically reviewed by the shaped by political arrangements” is likely to emerge federal government,and that may be disapproved by under pressure when existing institutional arrange- the federal government, in order for states and

120 U.S. Advisory Commission on Intergovernmental Relations localities to qualify for future federal water project groundwatec Since others have been res- funds that may never be available, imposes high costs cued in the past, there is a feeling that people in federal-state relations for the sake of keeping have a right to overuse, a right to expect res- federal officials from having to refuse state and local cue, a right to be subsidized.“2 requests for funding. The more direct approach of ending federal water subsidies requires more politi- The problems created for more effective ground- cal will from federal officials than maintaining the water management by the construction of federal (probably unrealistic) possibility of a federal “carrot” water projects arise at both ends of the process. Water in the form of future funding in order to use the “stick” users are reluctant to face up to the need to manage of federal conditions requiring pre-approved state and conserve local supplies as long as they think a groundwater management programs. federal project could bail them out. Once the federal Ending the flow of subsidies may be mom difficult water project is built, the water it supplies is so cheap politically, but it is preferable from a policy standpoint due to subsidies that there is no incentive to monitor and as a way of encouraging state conservation and manage use.113 For both reasons, the federal role in management of water resources Arizona was cited as improvingwater resource management should include an example of how the federal spending power has bringing the flow of water subsidies to an end been used to prompt state action. Yet, as other analysts have concluded, there is also an opposite, perverse Improving the Flow of Information. It appears that effect of the use of the federal spending power in water the nature of water supply information needs is resources, and that has been to lull states and localities changing. Technical information on the location and into inaction in improving management characteristics of aquifers is still needed, but is being Arizona has been discussed as an example of this supplied by several federal agencies, as described in phenomenon, too. As one analyst stated, “In Arizona Chapter 4. Information still is needed on institutional the federal presence was strongly felt in water arrangements for groundwater allocation and man- management decisions - “so strongly, perhaps, as to agement of groundwater supplies, and existing infor- provide a disincentive for local initiative.““O mation (technical or institutional) needs to be made Following adoption of the law, Wes Steiner, the more accessible. first director of the Arizona Department of Water There still is a critical need for additional infor- Resources, wrote: mation concerning institutional arrangements for the allocation and management of water supplies. One of the major obstacles that had to be This was the only priority area identified in a 1981 overcome before Arizonans could be con- National Research Council review of federal water vinced that they must deal internally with research lans as not being addressed by one or more the state’s water supply imbalance, was agencies. Pl4 Although USGS has funded institutional widespread confidence that permeated the studies since then, the need has not been fully met, water community that these problems and the area remained conspicuous by its absence in would be overcome in the future by effecting the 1989 Office of Science and Technology Policy interstate water transfers. We had to wean review of federal groundwater research expenditures them away from reliance on this dream and The scientific information yielded by decades of convince the legislature and the public that the research needs to be made more accessible to persons economic, environmental, and political costs with different levels of expertise.115 As noted in of major interstate water transfers to the Pacific Chapters 4 and 5, much federal information collect- Southwest make them completely infeasible at ing has stressed the advancement of the state of the art this time.. . and that we had to deal with our in hydrology which is important and beneficial. On imbalance problem with the supplies current- the other hand, additional translation of the informa- ly available to us plus our remaining entitle- tion would make it even more useful to water ment from the Colorado River”’ management decisionmakers, who tend to be concerned citizens and public officials, as well as hydrol- Along similar lines, another prominent observer of ogists and geologists. western water law and institutions wrote: Second, the technical information on water I think the users, the nonusers, and the public supplies is insufficiently accessible physically Stu- think that either the state or the federal gov- dies performed for and by a dozen different federal ernment will bail them out After all, huge agencies, 50 states, thousands of local governments, projects have saved other areas.. . . Surely the industry associations, environmental groups, foun- legislature or the Congress will come to the dations, and others, exist all over the country Finding rescue of other prosperous and growing something about a specific area is not difficult towns, groups of towns, cities, and counties finding all of the information about an area is nearly that have been created by the overuse of impossible, even if one is willing to travel to state

U.S. Advisory Commission on Intergovernmental Relations 121 water research centers and USGS regional and state Natural Resources and the House Committee on offices, to send away for information, to use interli- Interior and Insular Affairs cited more than 50 federal brary loan services, and the like.l16 facilities and installations contaminating groundwa- There are formal mechanisms for interagency ter resources just in nine western states.llg cooperation or joint information gathering. No fewer As the federal government moves in the 1990s to than six Memoranda of Agreement and 11 types of close down several military installations, affected interagency committees, working groups, and advi- states and communities are concerned about the sory boards, councils, and committees (some with plumes of toxic wastes below the land surface subcommittees) were listed in the 1989 Office of moving into and through aquifers that supply water Science and Technology Policy review of federal for drinking, domestic and industrial use, and live- groundwater research programs. And there are some stock and irrigation. As the federal, state, and local computerized information storage, retrieval, and governments pursue their “new environmental part- exchange programs for hydrologic data. USGS oper- nership,” the federal governmentshould at least try to ates the National Water Data Storage and Retrieval remove itself from the list of major groundwater System (WATSTORE), arranged in a Daily Values File, polluters.120 Compliance by federal facilities with a Peak Flow File, a Water Quality File, and a Ground state and local groundwater quality programs and Water Site Inventory File. USGS also supports a their implementation should be assured. program called the National Water Data Exchange (NAWDEX), which is monitored by the Subcommit- Summary: A Supportive Federal Role. A RAND tee on Water Data and Information Exchange of the Corporation report published toward the close of the Federal Interagency Advisory Committee on Water 1970s contained this summary observation: tiA1- Data, which is chaired by USGS. Similarly, EPA though the federal government through its various supports a National Groundwater Information Cen- departments and agencies has vast powers and ter, under contract with the National Water Well priority in the water field, the federal role in ground- Association in Dublin, Ohio, with more than 54,000 water is minimal.“12* A slight modification to that references listed statement would allow it to fit the early 1990s: the We have been unable, however, to establish a direct federal role in groundwater has beerr minimal. location where the whole array of groundwater As we have seen, the various departments and information, including management, would be avail- agencies of the federal government exercising vast able. In the 10lst Congress, a bill introduced in the powers and priority in the water field have indirect House by Rep. Sam Gejdensen and Rep. James consequences for groundwater management that are Scheuer, and in the Senate by Sen. Quentin Burdick, far more than minimal, and the potential for direct would have attempted to address this problem by action has grown. establishing, among other things, a national ground- The federal government’s role in research and water information clearinghouse. Representative investigations through the U.S. Geological Survey Scheuer’s bill is planned for reintroduction in the and other agencies has given states and localities 102nd Congress. much of the technical and scientific information Making more information available to state and about groundwater resources. That information has local water managers would ease one of the barriers been invaluable in planning appropriate manage- to more effective conjunctive management This is a ment strategies, improving programs, and designing logical lead role for the federal government, which new ones. Water resources research exhibits scale could couple information development and dissemi- characteristics that suggest it is best organized nation- nation about management practices and perform- ally, giving states, local governments, and water users ance with information on hydrologic data. The basic hydrological research and data, as well as growth of innovative management techniques being technical expertise and training. employed throughout the nation could then work The other modification to the RAND description more effectively to benefit all communities. of the federal role-that it has been minimal - reflects the changes of the last decade in the scope of Supporting Groundwater Quality Protection. There federal authority in the management of groundwater is another aspect to the federal role in supporting supplies. The direct federal role could increase as a improved groundwater quality protection. In far too result of expansions in the commerce power and the many cases, federal installations and facilities have use of the spending power. The federal government been among the principal polluters of local ground- has the power to directly legislate and regulate in the water resources, which “hasserious repercussions for area of groundwater supply management or to require the effectiveness of state and local regulations.“ii7 states to adopt legislation and regulations that meet “State and local regulations are not very effective specified federal criteria. The current question is not one when the polluter is a federal agency?** Testimony in of federal power but of intergovernmental relations, of 1987 before the Senate Committee on Energy and the wisdom of the exercise of federal power, and of

122 U.S. Advisory Commission on Intergovernmental Relations whether the federal government will continue to limit At the outset of the 19905 there is little doubt that its direct role in groundwater supply management the federal role in water supply management and in The appropriate federal management role was water resources generally is changing. Some see the addressed by the National Water Commission in its 1973 scope of federal authority expanding and anticipate report The Commission reflected a sensitivity to the more direct action by federal officials in the ground- important differences between an indirect and support- water field. Others see the federal role declining, with ive federal role and a direct and regulatory role: the states and localities “shouldering more of the burden.” By the end of the decade, the size and the The Commission does not believe.. . that the Congress should enact a comprehensive change in size of the federal role may turn out to have been the less interesting and less important question. Federal ground water law regulating withdrawal. Rather, Congress should assist States The more important question is likely to be what options federal officials chose- whether they de- and local regions to obtain the information necessary to make sound decisions, it should creased activities that impede more effective groundwater management and enhanced those that assist in declare a policy of supporting water development projects only when they are eco- the development of innovations and improvements. nomically sound, and it should implement this policy by close scrutiny of proposed ‘rescue projects,’ examining not only the eco- CHANGING WATER RIGHTS LAWS, nomics of project proposals but also conser- ENCOURAGING BASIN MANAGEMENT, vation and management practices applied to SETTING QUALITY PROTECTION POLICY ground water and surface water by the re- WHAT THE STATES CAN Do gion to benefit from the project.lZ States also face an agenda of institutional reform in improving the management of water resources - As the Commission’s statement suggests, there is modifying laws to increase certainty and flexibility of an indirect federal role that supports sound state and water rights, building capacity for conjunctive man- local management decisions by states and local agement of surface and groundwater supplies, and governments, and an indirect federal role that can setting policies for the protection of water quality distort the decisionmaking process. Before direct There does not appear to be a need for a single federal authority is expanded in groundwater man- uniform state groundwater code. States face different agement, activities that have indirect, but nonmini- situations, and will continue to develop and imple- ma1 and nonbeneficial, effects should be reconsid- ment different policies for allocating and managing ered. First (and perhaps most beneficial), the federal water supplies All states can benefit from this government could reduce its role in contributing to diversity and experimentation. and perpetuating the barriers to more effective In states where surface and groundwater are management As water resources have become in- physically interrelated, writing the rules governing creasingly scarce in some locations and as the compe- the supply sources would remove a major obstacle to tition for those resources has intensified, policies that their conjunctive use. Water users could be encour- promote inefficient use and impede effective managed, through pricing and other measures, to adjust agement become political luxuries that all segments their use of sources based on availability Maintaining of the water economy are better off without dual systems of rights for surface water and hydrolog- A 1989 White Paper of the Western Governors’ ically related groundwater inhibits the optimal use of Association on federal water policy coordination both sources. suggested that if the federal government is not going Uniting the systems of water production rights to play a leadership role in water management (in would also make it easier to resolve some of the keeping with the tradition of state and local primacy conflicts concerning the protection of instream val- in thisarea),it could try toavoid making management ues Within a given stream-aquifer system, one set of more difficult for states and local governments. specified, quantified water rights could allow rights In other words, western states understand to be exercised by some for surface water diversion; by that they cannot depend on the federal gov- others for tributary groundwater withdrawal; and by ernment to meet their needs for water, others leaving water instream for recreational, scenic, whether it be for consumptive or noncon- habitat, and other benefits. At the very least, states sumptive purposes. However, if states and should declare instream flow protection sooner rath- localities are to shoulder greater responsibil- er than later in order to allow effective basin manage- ity for meetingwater needs, the statesbelieve ment to proceed. that they are entitled to a system of federal Another institutional reform that has received water policy implementation that does not attention in the policy literature would change the needlessly get in their wayY system of acquiring rights for production of water or

U.S. Advisory Commission on Intergovernmental Relations 123 protection of instream flows. States have held that the National Water Commission concerning the only governments may acquire appropriative rights to range of authority that local water organizations need preserve instream fl0~s.l~~ This is argued to be unrra- for effective conjunctive management Finally, states sonably limiting: if a private individual or group wishes can continue to devise and improve water quality to increase the amount of water retained instream protection policies. With respect to groundwater, beyond an agency limit, there would appear to be no states can choose whether to classify aquifers and (in reason for refusing a permit Moreover, such rights accordance with federal criteria) where to set ground- should be tradeable between usas for increasing water quality standards, can implement the protec- instream flows for water production The citizens tion strategies they developed during the 1980s with would determine the balance between instream uses support from EPA, and can review and adopt the and water production, based on their valuations of each. recommendations in the 1989 Urban Institute report Dual systems of water rights effectively preclude this State Management of Groundwater: Assessment of Pmc- alternative from even being tried. tices and Progress. Whether joined with surface water rights or not, groundwater production rights systems would be improved by building in incentives for water conser- G ETTING THE PRICES RIGHT: vation. States choosing to retain the “beneficial use” W HAT LOCAL PUBLIC AND PRIVATE system, for example, could designate conservation W ATER ORGANIZATIONS CAN Do (including underground storage for subsequent use) Local public or private water suppliers, who as beneficial, thereby removing at least one disincen- determine pricing practices (in the absence of subsi- tive for conservation. States with an appropriation dies from larger jurisdictions), could contribute to system based on historical or permitted use could improved management by bringing prices more into provide that groundwater users do not forfeit any line with water’s value and cost After studying the portion of their production rights by agreeing to take issue for the National Council on Public Works surface water supplies or imported water supplies Improvement, Wade Miller Associates reached the when they are available. These modifications would following conclusions: remove current obstacles to conjunctive use. 1) Urban water supply systems are, from The change that would be most effective in a physical standpoint, generally func- promoting conservation and encouraging largeusers tioning successfully, and do not consti- (especially irrigators) to use water more sparingly tute a “national problem” - infrastruc- would be to make production rights transferable. ture problems, where they exist, are local Water users could employ water-saving techniques and idiosyncratic problems of planning, that would maintain their productivity and gain financing, and maintenance of certain further by selling or leasing the unused portion of individual systems.‘26 their water rights. This is not the same as suggesting 2) 7’he principal problem of water supply is the that all water production rights be privatized and left to a “free market” Transferability of water rights can failure to charge water prices that reji’ect the full costs of capital construction, replacf5 and should be regulated, in order to protect other ment, and operations and maintenance, and users, storage, quality, and environmental concerns. “i’frates have been maintained at levels that While the idea that water is different from other do not cover the full costs . . . this was the commodities may be an illusion, the uncertainty choice of local elected and appointed ofJicials concerning groundwater may be especially high and constittl tes ‘public choice failure’.“127 relative to other commodities.125 For this reason, retaining an institutional infrastructure to determine 3) The actions primarily needed to address and administer rights, to regulate transfers, and to the difficulties faced in water supply do resolve conflicts would be wise. That is to say, what not lie in structural, supply-oriented so- may be different about groundwater is not that it is too lutions, but in the adoption of institu- important to trust to markets, but that it is too tional arrangements that will imple- incompletely known to trust to unfettered markets. ment full-cost pricing of water supplies As noted in Chapter 5, part of the institutional and transferability of water rights.‘% infrastructure may be special water districts empow- Local water supply organizations especially ered to engage in conjunctive management of surface need to attend to the problems created by commin- and groundwater supplies. States could authorize gling of functions in local budgets. This practice well fitted special districts to regulate water transfers; distorts the price signals transmitted to consumers, to account for water production, production rights, and in turn distorts their decisions about the use and and storage; and charge for production and storage. consumption of water supplies. If implementation of States could consider the 1973 recommendations of full-cost pricing is demonstrated to be likely to impose

124 U.S. Advisory Commission on Intergovernmental Relations a hardship on lower income households, some of the 9 Ibid., p. 295. strategies used in the pricing of other utilities (such as lo Wade Miller Associates, 77re Nation’s Public Works: Report “lifeline” rates for basic service) should be explored. on Water Supply (Washington, DC: National Council on Increasing the role of full-cost pricing of water public Works Improvement, 1987), p. 286. and transferability of rights will take considerable ** Harvey 0. Banks, manag ement of Interstate Aquifer adjustment, especially in the western states Yet there Systems,” ASCE Journal of Water Resources Planning and Mumrgemenf 107 (October 1981): 566,573. is nothing inherently wrong with having economic relations reflect actual climatic conditions: “This is l2 NUM, p. 294. l3 A prime example of this phenomenon can be found in preferable to having an economic base artificially the water dispute over the use of streams feeding Mono reliant on under-priced supplies which cannot be Lake in the eastern Sierra to supply water to Los An- sustained.“*29 Moreoveq implementing and adjusting to geles. The use decisions, which were made by Los An- institutional arrangements that increase the marketabil- geles in the 1930s and 194Os, resulted over time in the ity of water rights and make water prices more tpalistic, lowering of the lake levels to a point which is contended is unlikely to take longer than the time for planning and to have damaged the Mono Lake ecosystem. In the 197Os, agroup of citizens formed the Mono Lake Committee as constructing the next major water and power project an organization to try to stop or reduce the water diversions by Los Angeles. Their actions have added a new “community of interest” to the decisionmaking process SUMMARY involved in determining how to use the waters that feed Mono Lake. Flexibility of arrangements, and the ability to adapt different solutions and employ specialized l4 Banks, p. 566. organizations in an institutionally rich environment l5 Nunn, pp. 181-182. are preferable in the coordinated governance of lb Ibid., pp. 207-208. water resources. With sufficient information and l7 Warren Viessman and Claire Welty, Water Management: flexibility, noncentralized systems can tend toward Technology and Institutions (New York Harper and Row, 19854, p. 11. efficiency and equity,n’-’ while maintaining and en- ls Thii hasevenbeencited as a perceived advantage of cen- hancing adaptability and self-governance. tralization in a “superdepartment [that] ‘is more effi- A noncentralized, or polycentric, decisionmak- cient because it allows trade-offs on natural resource ising arena representing diverse communities of inter- sues to be made on a rational, nonpolitical basis within est in jurisdictions that can accommodate conflicts the context of one department.‘” Henry C. Hart, “To- without including nonessential or unaffected partici- ward a Political Science of Water Resources Decisions,l in L. Douglas James, ed, Man and Water (Lexington: Uni- pants-what one writer called a “community defin- versity Press of Kentucky, 1974), p. 136. ing federalism”‘”-provides possibilities for resolv- l9 Stephen C. Birdlebough and Alfred Wins, “Legal As- ing conflicts, directing resources toward their higher pects of Conjunctive Use in California,” in David Seckler, valued uses, and maintaining the flexibility to adapt to ed., California Water: A Study in Resource Mnnagement changed circumstances or correct erroneous decisions (&kz yirsity of California Press, 1971), p. 263; With institutional barriers to more effective water resource management reduced or eliminated, a multi- m Helen J. phters, “Groundwater Management,” Water Re- jurisdictional republic offers considerable advantages sources Bulletin 8 (February 1972): 190. in managing a multiattribute msoume such as water 21 Michael Mallery, “Groundwater: A Call for a Compre- hensive Management Program,” Pacific law Journal 14, Notes (July 1983): 1280. 22 See, for example, Thelma Johnson and Helen peters, ‘Re- 1 Bonnie McCay and James Acheson, “Ihe Human Ecolo- gional Integration of Surface and Ground Water Re- gy of the Commons,” in Bonnie McCay and James Acbe- sources.” Paper presented at the Symposiumof thelnter- son, eds., Capturing the Commons: 77le Culture and Ecology national Association of Scientific Hydrology, Haifa, o/ Colnmunal Resources (Tucson: University of Arizona Israel, 1967, pp. 497-498, in which they illustrate the po Press, 1987), p. 38. tentialchangesinusepatternsresultingfrom thesucces- 2 Ibid., p. 124. sful implementation of a management program, 3 Susan Christopher Nunn, i?ePoliticnl Economy oflnstitu- changes which may themselves then result in subse- tional Innovation: Coalitions and Strategy in the Development quent strains on that program. of Groundwater Law. Ph.D. Dissertation. University of 23 Wade Miller Associates, p. 92. Wisconsin, 1986, p. 299. 24 Ibid., p. 14. 4 Ibid. z5 Clark, p. x. 5 ha G. Clark, Water in New Mexico: A Hisforyoflts Manage- 26 Neil S. Grigg, aAppendix: Groundwater Systems,” in ment and Use (Albuquerque: University of New Mexico Kyle Schilling et al., 73e Nation’s Public Works: Report on Press, 1988), pp. x-xi. Water Resources (Washington, DC: National Council on Public Works Improvement, 1987), p. B-2. b Nunn, p. 297. 27 Sho Sato, Water Resources- Comments upon the Fed- 7 Ibid., p. 295. eral-state Relationship,* Cnlifornin LOW Review 48 s Ibid., p. 294. (March 1960): 56.

U.S. Advisory Commission on Intergovernmental Relations 125 zs California Department of Water Resources, C&forrria’s 5z David Moreau, “New Federalism and Social and Envi- f;;u12d Water. Bulletin No. 118 (Sacramento, 1975), p. ronmental Goals,“Journalof WnferResonrces Pla~n7ingn~7d Abnageme??t 115 uanuary 1989): 25-26. 29 Ranjit Varkki George, “Is Groundwater Regulation 53 Wade Miller Associates, p. 210. Blindman’sBuff?“~orr~~~alo/Pl~~r~zilrgLiter~ture3 (Spring 54 Ibid., p. 209. 1988): 233. 55 Moreau, p. 26; Humphrey and WaIker, p. v. 30 Wade MiIIer Associate!,, pp. 204-205; National Water 56 Wade Miller Associates, p. 113. Commission, Wfer Pohres for the Futrrre: Final Reporf fo 57 The 1981 statement by the National Governors’ Associ- the Presiderzf a77d to the Co77ress of the United Sfafes (Port ation included the following: Washington, New York: Water Information Center, 1973), p. 243. The Governors believe that considerable authority exists in federal and state law to control 31 Wade Miller Associates, p. 205; Jurgen Schmandt, Ernest sources of groundwater pollution. This authority Smerdon, and Judith Clarkson, State Water Policies (New needs to be fully exercised to assure a protection York: Praeger Publishers, 1988), pp. 10-11; U.S. Office of effort that is coherent, consistent, and effective. Science and Technology Policy, Federal Ground Water The Governors endorse and recommend a Science and Technology Programs, A Reporf by the Sub- new national policy to systematically accelerate cotrtllliffeeotl Gromd Writer (Washington,DC, 1989),p. 3-3. and strengthen protection of our underground 3z National Research Council, Committee on Ground Wa- water supplies. This policy should depend primar- ter Quality Protection, Grorr?rd Wafer Qualify Profecfiox iIv on states for implementing comprehensive State aild Local Strategies (Washington, DC: National groundwater management pro~arns.~Thii policy Academy Press, 1986), p. 3. must also be founded on a new environmental partnership, which respects the local characteris- 33 National Research Council, p. 3; C.H. Ward, N.N. Dur- tic of groundwater, while capitalizing on the ca- ham, and L.W. Canter, “Ground Water-A National Is- pability and expertise of each level of govern- sue,” Grolrrd Wrrter 22 (March-April 1984): 140. ment, the private sector, and public interest 31 U.S. General Accounting Office, Groultdwaf~Profection: groups. ‘l%e Use of Drirtking Water Stnadcrrs 6y the Stntes (Wash- 58 National Groundwater Policy Forum, A Groundwnfer ington, DC, 1988), p. 1. Profecfion Strategy (Washington, DC: The Conservation 35 National Research Council, p. 3. Foundation, 1986), p. 1. 59 U S General Accounting Office, Groundwater Protecfion, 36 Christine OIsenius, “Tomorrow’s Water Manager,“]otlr- p:1: ~tal ofSoiZnrzd Wafer Couservrrtion 42 (September-October 1987), p. 314. a See for example, testimony of Erik D. Olson National W&Iife Federation, before the Subcommittehon Natu- 37 Ibid. ral Resources, Agricultural Research, and Environment, 38 Wade Miller Associates, p. 68; National Research Council, Committee on Science, Space, and Technology, U.S. p. 3; Ward, Durham, and Canter, p. 140. House of Representatives, 100th Congress, First Session, on H.R. 2253, and H.R. 791, July 21,1987, p. 93. 39 Wade MiIIer Associates, p. 68. 61 National Research Council, pp. 23. a National Research Council, p. 3. 62 John E Mann, Jr., “Concepts in Ground Water Manage- *I Schmandt et al., p. 10. ment,” ]onrnal of&e A?nerican Wafer Works Associ’atiolz 60 (December 1968): 1336. B Viessman and Welty, p. 14 (emphasis added). ’ 63 Ibid. 43 U.S. General Accounting Office, Gromdzuater Qudity: 64 Environmental and Energy Study Institute, pp. 10-11. Sfafe Actiuifies fo Guard flgainst Co??fn?ninanfs (Washing ton, DC, 1988), p. 3. 65 Testimony of former Wisconsin Governor Anthony Earl before the Subcommittee on Water and Power Re- @Wade Miller Associates, p. 111. sources, Committee on Interior and Insular Affairs, U.S. * U.S. General Accounting Office, Groundwnfer QnaIify, p. House of Representatives, 100th Congress, First Session, 3. on H.R. 2320. Series No. 100-23, Part I. July 23,1987, p. 20. 46 Environmental and Energy Study Institute, A Co??gres- 66 Ibid. siolznl Agerrda to Preve??t Groundw&r Contrrmination: 67 National Research Council, p. 9. Building Copncity to Meet Protection Needs (Washington, 68 Robert Ehrhardt and Stephen Lemont, Insfifutio??nl Ar- DC, 1986), p. 164. ranptents for htrustnfe Groundwnfer Manf?geme??t: A *‘National Research Council, p. 10. Coinparative Assessmart Usiq Virginia as a (35-e Sfudy (Arlington, Virginia: JBF Scientific Corporation, 1979),p. ‘ES Cox, p. 118. 22. 49 “Groundwater Contamination: Common Ground for 69 George, p. 240. the Common Law,” Water Sfrategist 2 (January 1989): 1. ‘O Moreau, p. 29. 5o Wade Miller Associates, p. ii. n National Water Commission, p. 460. 51 Ibid pp. 13 and 210; Nancy Humphrey and Christopher TL Frank J. Trelease, “States Rights Versus National Powers W&r, Imrovative Sfnfe Approaches to Comnzfnzity Idhfer for Water Development,” in Ernest Engelbert, ed., Stint- %rpply Proble??rs (Washington, DC: The Urban Institute, egiesfor Westun Regionnl W&er Developmer?t (Los Angeles: 1985), p. v. Western Interstate Water Conference, 1966), p. 101.

126 U.S. Advisory Commission on Intergovernmental Relations n Ibid., p. 107. have comprehensive plans in place; yet most States need such plans.” 74 Mary Ann Green, “Water Law - Sporhase v. Nebraska,” Natural Resources ~oumal33 (October 1983): 931. 97 Comments of Representative George Miller, Congressio- nal Record, Volume 133, Number 73, May 7,1987: 75 Zachary Smith, “Federal Intervention in the Manage- ment of Groundwater Resources: Past Efforts and Fu- Stateswhichchoosenot todevelop plansand ture Prospects,” Publius-?%e lourrral of Federalism 15 which have serious problems with ground water (Winter 1985): 156. will not receive funds for construction of reclamation projects. Further, the Secretary of theInterior 76 Viessman and Welty, p. 38. will be precluded from entering into water deliv- n Ibid. ery contracts in such States. The bill involves a “carrot-and-stick” approach to ensuring that m Kyle Schilling et al., 7%~ Nation’s Public Works: Report on sound ground water programs are put into place Wafer Resources (Washington, DC: National Council on where needed. Public Works Improvement, 1987), p. 97. 98 National Water Commission, p. 232. 79 Schmandt et al., p. 64. 99 Ibid., p. 238. 8o Lawrence Mosher, Wii the Real Leaders in National Water Policy Please Stand Up?” Journal of Soil and Water loo Ibid., p. 242. Conservation 44 (March-April 1989): 135. lo1 Smith, p. 152. *l Lawrence Mosher, “Federal Water Development: Going, lo2 Miller, May 7,1987. Going . . . .” ]ournal of Soil and Water Conservation 41 loa Ibid. (May-June 1986): 166. lo4 Wesley Steiner, “public Water policy in Arizona,” State 82 Ibid. Government 55 (1982): 134. 83 Henry l? Caulfield, “The Future of Local Water Districts in Historical, Political Context,” in James Corbridge, ed., * * I) SpeciaZ W&r Districts: Chalknge for the Fufure (Boulder: lo6lo5 SchmandtPhilip Briggs, et “Gro‘.’ ‘tn?iater- Management In Arizona Natural Resources Law Center, 1983), p. 107. Journal of Water Resources Planning and Management ids (July 1983): 201-202. 8p Schilling et al., p. 94. ‘07See Rebecca Roberts and Sally Gras, “The Politics of 85 Schmandt et al., p. 16; Caulfield, p. 109. Ground-Water Management Reform in Oklahoma,” 86 Moreau, p. 25. Ground Wafer 25 (September-October 1987): 535544. 87 399 U.S. 725 (1949). loa Micha Gisser, “Groundwater: Focusing on the Real Is- sue,” Journal of Political Economy 91 (December 1983): ea Ivanhoe Irrigation District v. McCracken et al., 357 U.S. 1001-1002. 275 (1958). lo9 Ibid., p. 1003. 89 373 U.S. 546 (1963). *lo Nunn, p. 20. 90 Norris Hundley, Water and tlze West (Berkeley: University of California Press, 1975), p. 306. 111 Steiner, p. 135. 91 Smith, p. 149. 112 Frank J. Trelease, “Legal Solutions to Groundwater Problems-A General Overview,” Pacific Lnw Journal 11 92 Charles Corker, “Water Rights and Federalism-The (July 1980): 874-875. Western Water Rights Settlement Billof 1957,” California Law Review 45 (December 1957): 622. I13 Viessman and Welty, p. 16; 93 Green, p. 926. 114 Schilling et al., pp. 116-117. 94 National Water Commission, p. 227. 115 Ward, Durham, and Canter, p. 140. ‘I6 Ibid. This should include all institutional arrangements 95 Ibid. for the management of groundwater resources, includ- 96 Hearings before the Subcommittee on Water and Power ing court decisions as well as legislative and administra- Resources, Committee on Interior and Insular Affairs, tive actions. House of Representatives, Series 100-23, Parts I and II. See, for example, the testimony of the first witnesscalled 117 George, p, 236. in support of the bill, Wiionsin Governor Anthony Earl, 118 Ibid. at Part I, p. 21: 119 Testimony of Craig Bell, Executive Director of the West- We need a national goal, a national ground ern States Water Council, before the Subcommittee on water policy, and 1 believe the seeds of such a Water and power Resources, Committee on Interior and policy are contained in H.R. 2320. Limiting the Insular Affairs, U.S. House of Representatives, 100th coverage to the 17 reclamation States ls not as am- Congress, First Session, on H.R 2320. Series 100-23, Part bitious as covering all the States, but I understand II, July 23,1987, pp. 175-178. you must start somewhere. . . . What begins with 120 See also Environmental and Energy Study Institute, p. 171 thinkwouldultimatelyexpandtomoreStates. 10. Simiiar comments appear on p. 53 in the testimony r2’ David L. Jaquette and Nancy Y. Moore, EfJicierrt Wafer of Philip Metzger of the Conservation Foundation in Usein California: Groundwater UseandManagemnt (San- support of the bill. See also Comments of Representative ta Monica: RAND Corporation, 1978), p. 31. George Miller, Congressional Record, Volume 133, Num- ber 138, September 14,1987: “Few States in the Nation lzz National Water Commission, p. 242.

U.S. Advisory Commission on Intergovernmental Relations 127 lz3 Western Governors’ Association, White Paper on Feder- A national water supply “infrastructuregap” al Water Policy Coordination, May 11,1989, p. 3. of the magnitude that would require a substantial federalsubsidy does not exist. Water utilitiesexpe- 124 Terry Anderson and Ronald Johnson, “The Problem of riencing revenue shortfalls generally do not lnstream Flows,” Econorrzic Inqzky 24 (October 1986): charge rates which cover full costs of the utility, 538. lz7 Ibid., p. 211 (emphasis added). lzs Victor Brajer and Wade E. Martin, ‘Nlocating a ‘Scarce’ lzs Ibid., pp. 122-123. Resource, Water in the West,” AmericnnJournal ojEconom- lz9 Ibid., pp. 115-116. its and Sociology 48 (July 1989): 2.59271. 130 Ibid. lz6 Wade Miller Associates, p. 211; see also p. i: 13t Hart, p. 154.

128 U.S. Advisory Commission on Intergovernmental Relations Appendix A Tables

U.S. Advisory Commission on Intergovernmental Relations 129 7i7ble A-l Groundwater Withdrawals as a Percentage of All Water Withdrawals, 1985* (U.S. average 2 34%) State Percent Rank State Kansas 91% New York ~~~;~ip,pi E Connecticut ;; Nevada Florida ;; New Hampshire Nebraska ;; Vir ‘nia Iowa 69 zi Ida8’ o Texas Alabama Missouri z: ;; Kentucky Minnesota Michigan Oklahoma zi ?i Pennsylvania Hawaii Tennessee Arizona ii ;z Utah Georgia 47 Alaska New Mexico ii Rhode Island North Dakota Ii; 38 Washington Wisconsin West Virginia California 4440 ii Colorado South Dakota z 42 42 Indiana Illinois Maryland Ohio Delaware Louisiana E z Maine North Carolina 29 47 South Carolina Vermont 29 48 Oregon New Jersey oming Massachusetts 2 49 50 2ontana * Excluding withdrawals for thermoelectric power, Source: Wayne SolIey, Charles Merk, and Robert Pierce, Estimated Wufpr Use ill file Ultittlll St&es 2985 (Washington, DC: U.S. Geological Survey, 1988). Table A-2 Groundwater Withdrawals Per Capita Per Day, in Gallons, 1985 (U.S. average = 363) State Gallons State Gallons Idaho Alaska 135 Nebraska 4,7903,498 Missouri 126 Kansas 1,951 Delaware 125 Arkansas 1,606 Wisconsin 119 New Mexico West Virginia 118 Wyoming 1,021994 Indiana 115 Nevada Tennessee 92 Arizona 940931 New Jersey Colorado 707 Alabama iit Hawaii 617 New Hampshire Mississippi 602 Illinois 2 California North Carolina Utah E Ohio ii Texas 430 Vermont 68 South Dakota 352 Pennsylvania Florida Michigan z Louisiana 2; South Carolina 63 Washington 273 New York Montana Virginia "5"9 Oregon 2; Mame Iowa Kentucky z North Dakota 235187 Massachusetts Oklahoma Maryland z Georgia 164172 Connecticut 45 Minnesota 163 Rhode Island 28 Source: Ralph C. Heath, ‘introduction to State Summaries of Ground-Water Resources,” Nnfiolfnl W&a Sumnmry 1984 (Washington, DC: U.S. Geological Survey, 1985).

130 U.S. Advisory Commission on Intergovernmental Relations Ttible A-3 Percentage of Population Served by Groundwater, 1985 (U.S. average = 51%) Rank State Rank State Hawaii Washington ; Mi&;igpi West Virginia 3 Tennessee 4 Idaho New Jersey Florida Illinois z New Mexico Missouri South Dakota Texas i Iowa Maine 9 Alaska Minnesota ikz?a :: Wisconsin Alabama 12 California South Carolina 13 Indiana Pennsylvania 13 Utah Nevada Arizona Oregon :z North Dakota Massachusetts 17 Arkansas Virginia 18 voming New York 19 Delaware Oklahoma 20 Kansas Michigan North Carolina Connecticut ii Louisiana Maryland New Hampshire Kentucky ;; Vermont Rhode Island 25 Montana Colorado Source: Wayne Solley, Charles Merk, and Robert Pierce, Estimated Water Use in the United States 1985 (Washington, DC: U.S. Geological Survey, 1988). Table A4 Percentage of Public Water Supply from Groundwater Withdrawals, 1985 (U.S. average = 40%) State Percent Rank State Percent Idaho 92% 2.6 Washington 35% Florida 89 Nevada Mississippi ii Vermont New Mexico E 29 New Hampshire Hawaii Alabama Nebraska E $i Ohio ii South Dakota Missouri 27 Iowa ;i ;i Illinois 26 California 70 34 Georgia 25 Utah West Virginia 25 Arizona ii; zi Massachusetts 24 Minnesota z 37 Maine Alaska South Carolina 8 Kansas 50 ii Oklahoma 20 oming 49 39 Oregon 20 7isconsin 48 New York Indiana Connecticut :; Louisiana ii Michigan 18 North Dakota 43 Pennsylvania Texas 41 North Carolina :; Arkansas 39 Rhode Island 13 Montana Virginia New Jersey :; Kentucky ii Tennessee 39 Colorado 12 Delaware 38 Maryland 9 Wayne Solley, Charles Merk, and Robert Pierce, Es!imnfed Wafer Use in file hited Shfes 1985 (Washington, DC: US. Geological Survey, 1988).

U.S. Advisorv Commission on Intereovernmental Relations 131 Table A-5 Percentage of Withdrawals for Industrial Use from Groundwater, 1985

Rank State State Percent 1 Arizona Washington 19% South Dakota Massachusetts 3” Idaho Virginia :; Kansas Louisiana ; Nebraska New Hampshire :t Florida Connecticut 12 5 Hawaii New Jersey Utah North Carolina :; i Wyoming Oregon 10 Mio4iEAipi South Carolina :i 11 Michigan Georgia Wisconsin i :i New Mexico Alaska 14 California Pennsylvania 7’ 15 Missouri Vermont 7 16 Minnesota Colorado Arkansas Maryland 2 :‘8 Iowa Tennessee 19 Illinois Texas i Kentucky Alabama iii New York Delaware : North Dakota Indiana i; Nevada West Virginia : 23 Rhode Island Maine 3 25 Oklahoma Ohio 2 Source: Wayne Solley, Charles Merk, and Robert Pierce, Estimated Wafer Use in fke United Sfafes 1985 (Washington, DC: U.S. Geological Survey, 1988). Table A-6 Percentage of Withdrawals for Irrigation from Groundwater, 1985 (U.S. average = 34%) State Percent Rank State Percent Illinois 100% California 34% Wisconsin 98 ;; New Jersey Kansas Tennessee if Missouri ;; 28 29 Alabama Arkansas South Dakota 2 Oklahoma E 8 Massachusetts 24 ?&&ssippi Nevada 22 EJ 32 33 Colorado 17 Indiana Idaho 16 Nebraska 7771 if) Pennsylvania Delaware Virginia :“3 Georgia 7068 2 Washington 13 Texas Utah Minnesota 2; 2 Maine South Carolina Rhode Island Maryland 62 :: Oregon Florida z; West Virginia New York Connecticut Louisiana :; :: 43 North Carolina Arizona 45 g;g;g Michigan 43 iz Ohio 43 47 Montana North Dakota 42 48 Alaska New Mexico New Hampshire Hawaii 4137 :: Vermont Source: Wayne Solley, Charles Merk, and Robert Pierce, Estimated hJater Use in the Urrited Sfates 29S.5 (Washington, DC: U.S. Geological Survey, 1988).

132 U.S. Advisory Commission on Intergovernmental Relations Appendix B Bibliography

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138 U.S. Advisory Commission on Intergovernmental Relations Priority Issues for State Legislatures. Denver Na- for Ground-Water Management.” Lund Economics tional Conference of State Legislatures, 1989. 32 (August 1956): 259-269. Samuelson, Charles, and David Messick flAlternative Smith, Zachary “Competition for Water Resources: Structural Solutions to Resource Dilemmas.” Issues in Federalism.” Journul of Lnmi Use and Working Paper, University of California-Santa Enuironmentul Luw 2 (1986): 177-193. Barbara, 1984. - “Federal Intervention in the Management Sato, Sho. “Water Resources-Comments Upon the of Groundwater Resources: Past Efforts and Federal-State Relationship.” California Law Re- Future Prospects.” Publizls - 7’heJournal of Federul- view 48 (March 1960): 43-57. ism 15 (Winter 1985): 145-159. Savage, Robbi. “National Clean Water Act Program “Interstate and International Competition Turned into State Revolving Loan Funds.” County for Water Resources.” Wuter Resollrccs Blrlletill 23 News 19 (August 17,1987): 16. (October 1987): 873-877. Savage, Roberta. “State Initiatives in Non- . “The Policy Environment.” In Zachary point-Source Pollution Control.” Iournal of Soil Smith, ed. Wafer and the Al tzrre of fhe Souflmrest. RIZ~ Wlzter Conservation 40 (January-February Albuquerque: University of New Mexico Press, 1985): 53-54. 1989. pp. 9-18. Schiffman,Arnold. “Ground-WaterContamination- - “Rewriting California Groundwater Law: A Regulatory Framework” Ground Water 26 Past Attempts and Prerequisites to Reform.” Culifor- (September-October 1988): 554-558. niu Western Lnw Review XI (Winter 1984): 223257. Schilling, Kyle, et al. Tote Natiorz’s PubIic Works: Report - “Stability Amid Change in Federal-State 011 Wuter Resources. Washington, DC: National Water Relations.” Capital University Luw Review Council on Public Works Improvement, 1987. 15 (Spring 1986): 479-491. Schmandt, Jurgen, Ernest Smerdon,and Judith Clark- Solley, Wayne, Charles Merk, and Robert Pierce. son. State Wuter PoZicies. New York Praeger Pub- Estimated Use of Water in the United Sfates, 2985. lishers, 1988. U.S. Geological Survey Circular 1004. Washing- ton, DC: U.S. Geological Survey, 1988. Seckler, David, and L M. Hartman. “On the Political Economy of Water Resources Evaluation.” In Stamm, G. G. “Federal Legislation and Ground-Water David Seckler, ed. Development” Ground Wafer 3 (January 1965): CuIijorniu Water: A Sfudy in 3@32b Resource Munugement. Berkeley: University of California Press, 1971. pp. 285-309. Steiner, Wesley E. “Public Water Policy in Arizona. Sever, Charles. “The Federal Ground-Water Protec- State Government 55 (1982): 133-135. tion Program-Today’s Hope.” Ground Water 17 Stepleton, B. M. “T&s Ground Water Legislation: (January-February 1979): 80-82. Conservation of Ground Water or Drought by proCess?” NufuruI Resources Jozuxul 26 (1986): Simmons, Malcolm M. Culijorniu Wuter. Washington, 871-882 DC: Library of Congress, Congressional Research Service, 1981. Stetson, Strauss and Dresselhaus. Comperrdium of Report on a Supplemental Water Supply for Upper Smith, Robert J. “Resolving the Tragedy of the Com- San Gabriel Valley Municipal Wuter District. Los mons by Creating Private Property Rights in Angeles, 1962. Wildlife.” 1 (Fall 1981): 439-468. Cute Journal Stetson, Thomas M. “Main San Gabriel Basin Smith, Rodney. “The Changing Role of Water Policy Ground-Water Management” Paper presented in California’s Economic Development” Paper at the 82nd Annual Meeting of the Cordilleran prepared for the California Economic Develop- Section of the Geological Survey of America. In ment Corporation, April 1988. Prem K. Saint, ed. Hydrogeology of So&m Cdifor- . “A Reconciliation of Water Markets and niu: und Guidebook. Los Angeles: Geological Soci- Public Trust Values in Western Water Policy.” ety of America, 1986. Transactions of the Fifty-Third North American Sutherland, I? Lorenz, and John A. Knapp. “The Wildlife and Natural Resources Conference. Impacts of Limited Water: A Colorado Case 1988. pp, 326-336. Study.” Journul of Soil am-l Wrrter Conservutiolr 43 - fiuding Wuter: An Economic and Legal Frame- (July-August 1988): 294-298. work for Wuter Marketing. Washington, DC: Coun- ‘Igylor, Edward E “Arizona v. California-Landmark on cil of State Policy and Planning Agencies, 1988. the Colorado River” Gmmd W&r 5 (April 1967): Smith, Stephen C. “Economics and Economists in 5-12 Water Resources Development” In L Douglas Taylor, Paul S. “The X0-Acre Law.” In David Serkler, James, ed. Mun rind Wuter. Lexington: University ed. Californin W&r: A Study in Resource Multuge- Press of Kentucky, 1974. pp. 82101. menf. Berkeley: University of California Press, . “Problems in the Use of the Public District 1971. pp. 251-262.

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U.S. Advisory Commission on Intergovernmental Relations 141 142 U.S. Advisory Commission on Intergovernmental Relations Recent Publications of the U.S. Advisory Commission on Intergovernmental Relations Interjurisdictional Tax and Policy Competition: Good or Bad for the Federal System?, M-177, 1991, 72 pp...... $10.00 State-Local Relations Organizations: The ACIR Counterparts, A-117,1991,36 pp...... $10.00 Directory of State-Local Relations Organizations: The ACIR Counterparts, A-117D, 1990,52 pp...... $2.00 State Taxation of Telecommunications, A-116, 1990,40 pp...... $10.00 Significant Features of Fiscal Federalism, 1991 Edition, Volume I, M-176, 1991, 180 pp...... m.00 The Structure of State Aid to Elementary and Secondary Education, M-175, 1990,72 pp...... $10.00 Representative Expenditures: Addressing the Neglected Dimension of Fiscal Capacity, M-174,1990, 128 pp...... $20.00 Mandates: Cases in State-Local Relations, M-173, 1990,64 pp...... $10.00 Changing Public Attitudes on Governments and Taxes: 1990, S-19,1990,40 pp...... $10.00 1988 Fiscal Capacity and Effort, M-170,1990, 160 pp...... $20.00 State Constitutional Law: Cases and Materials, 1990-91 Supplement, M-172, 1990,56 pp...... $7.00 Intergovernmental Regulation of Telecommunications, A-115, 1990,48 pp...... $10.00 The Volume Cap for Tax-Exempt Private-Activity Bonds: State and Local Experience in 1989, M-171, 1990,36 pp. . $7.50 Significant Features of Fiscal Federalism, 1990 Edition, Volume I, M-169, 1990, 152 pp...... $17.50 VolumeII,M-169-11.1990.280pp...... $17.50 State and Local Initiatives on Productivity, Technology, and Innovation, A-114, 1990, 180 pp...... $25.00 Local Revenue Diversification: Rural Economies, SR-13,1990,60 pp...... $8.00 State Taxation of Banks: Issues and Options, M-168, 1989,48 pp...... $10.00 A Catalog of Federal Grant-in-Aid Programs to State and Local Governments: Grants Funded FV 1989, M-167, 1989,40 pp...... $10.00 Local Revenue Diversification: Local Sales Taxes, SR-12, 1989,56 pp...... $8.00 State Constitutions in the Federal System: Selected Issues and Opportunities for State Initiatives, A-113.1989.128~~ ...... $15.00 Residential Community Associations: Questions and Answers for Public Officials, M-166, 1989, 40 pp...... $5.00 Residential Community Associations: Private Governments in the Intergovernmental System? A-ll2,1989,128pp ...... $10.00 Readings in Federalism-Perspectives on a Decade of Change, SR-11,1989, 128 pp...... $10.00 Disability Rights Mandates: Federal and State Compliance with Employment Protections and Architectural Barrier Removal, A-111, 1989,136 pp...... $10.00 Hearings on Constitutional Reform of Federalism: Statements by State and Local Government Association Representatives, M-164, 1989,60 pp...... $5.00 State and Federal Regulation of Banking: A Roundtable Discussion, M-162, 1988.36 pp...... $5.00 Assisting the Homeless: State and Local Responses in an Era of Limited Resources, M-161, 1988, 160 pp...... $10.00 Devolution of Federal Aid Highway Programs: Cases in State&cal Relations and issues in ,Q.& Law, M-160,1988,6Opp...... $5.00 State Regulations of Banks in an Era of Deregulation, A-110. 1988,36 pp ...... $10.00 State Constitutional Law: Cases and Materials, M-159, 1988,480 pp...... $25.00 Local Revenue Diversification: Local Income Taxes, SR-10, 1988,52 pp...... $5.00 Metropolitan Organization: The St. Louis Case, M-158, 1988, 176 pp...... $10.00 Interjurisdictional Competition in the Federal System: A Roundtable Discussion, M-157, 1988,32 pp...... $5.08 State-Local Highway Consultation and Cooperation: The Perspective of State Legislators, SR-9, 1988,54 pp...... 5.00 The Organization of Local Public Economies, A-109, 1987,64 pp...... $5.00 Is Constitutional Reform Necessary to Reinvigorate Federalism? A Roundtable Discussion, M-154, 1987,39 pp. ... $5.00 Local Revenue Diversification: User Charges, SR-6, 1987,64 pp...... $5.00 Devolving Selected Federal-Aid Highway Programs and Revenue Bases: A Critical Appraisal, A-108, 1987,56 pp. .. $10.00 Federalism and the Constitution: A Symposium on Garcia, M-152, 1987,88 pp...... $10.00