A first step towards groundwater pumping regulation?
A Sacramento Superior Court Judge recently issued a ruling that could set an important precedent for the regulation of groundwater pumping in the state of California; a ruling that could have significant implications for both Inyo and Mono Counties.
According to Capitol Public Radio, on July 15, the Superior Court ruled in favor of a lawsuit claiming groundwater pumping in the Scott River Basin in Siskiyou County is partly responsible for decreased river flows. The lawsuit argued that decreased flows limit the public’s use of the river and harm fish habitat, therefore tying groundwater to the “public trust doctrine.”
What is the public trust doctrine? As Inyo County Attorney and former Water Department Director Greg James explained it, in California, the state is responsible for maintaining all navigable waterways for the benefit of the public. “Under the doctrine, the state has a duty to supervise and administer the public trust so the public may continue to use navigable waterways for trust purposes,” he said.
The public trust originally applied to commerce and fishing, but has since expanded to include hunting, bathing, swimming, boating, recreation and environmental uses on “navigable” waterways; lakes, rivers and streams capable of being used for recreational boating at least part of the year.
The Owens River and Walker River are both “navigable” waterways, by this definition.
James noted that the Superior Court did not rule that groundwater itself is a resource protected by the public trust doctrine. Instead, “the court only found that the public trust doctrine applies when the extraction of groundwater causes harm to navigable waters, harming the public’s right to use those navigable waters for public trust purposes,” he said.
The court subsequently ruled that a county, as a subdivision of the state, is required to consider the public trust when issuing well permits.
If the ruling is upheld, after a likely appeal, “it would mean that when a person or entity applies to Inyo County or Mono County for a permit to drill a well … the County, as a subdivision of the state, must consider whether or not the proposed groundwater pumping would adversely affect public trust values in the waterway,” said James.
This could mean both Counties could do more to regulate groundwater pumping by both individuals and entities such as the Los Angeles Department of Water and Power, given sufficient evidence of an adverse impact from pumping to a navigable waterway.
The ruling, should it stand, may only come to bear on new permits, rather than previously permitted wells. But considering the state of California’s groundwater supply, the Siskiyou County decision could be the first step toward much-needed statewide groundwater regulation.
Why is this so important? As the California Water Foundation’s “Groundwater Voices Coalition” website notes, more than 80 percent of Californians are reliant to some degree on groundwater. About 30 percent of California’s water supply comes from groundwater, and more than 30 percent during drought years. Here in Mono County, Mammoth relies on over 90 percent groundwater in dry years, according to the Mammoth Community Water District.
Yet California is the last remaining western state without statewide groundwater regulation.
What this means is patchwork of local and regional oversight that ranges from careful monitoring to a “there it is … take it” mentality.
Some areas, such as Central Valley, supply about 20 percent of the nation’s groundwater. As stated in a recent LA Times op-ed, “Since 2002, the Central Valley has been using groundwater at a rate of 800 billion gallons a year. That is roughly equivalent to one full Lake Mead every 12 years.”
After three years of drought, groundwater pumping has only increased in areas where resources are already severely depleted. According to the LA Times, since pumping began in the Central Valley in the 1800s, “[its] groundwater reserve has lost about 38 cubic miles of water — enough to drain Lake Tahoe.”
The Valley, like the rest of California, is covered not by one comprehensive groundwater management plan, but in this case by a patchwork of 79 different plans. The lack of cohesive regulation means Counties frequently issue permits without regard for the impact of groundwater pumping.
According to the Merced Sun-Star, 299 new well drilling permits were issued in the first six months of this year in Merced, almost as many as were issued during all of 2013, which was a high year for drilling.
Groundwater levels are dropping across the state; even here in Inyo and Mono Counties (see Sheet stories archived oin the website entitled “Maranatha Drilling” in 2012 and “Water Woes Wound Inyo County Residents” this year).
Locally, groundwater pumping has had a noticeable effect on riparian habitat along the Owens River and in the Mono Lake Basin. Inyo County Water Commissioner Mike Prather noted that LADWP pumping in the Owens Valley may have an impact on wetlands, meadows, and springs; “public trust may play into that,” he said.
Prather said the Siskiyou County ruling has come at the right time. “It comes at a time when there is a lot of talk about doing something about groundwater, because there are thousands of wells being drilled in the Central Valley this year, and many being drilled deeper,” he said. “We can’t do these things continuously, without an impact.”
Greg James agreed. “In my opinion, the holding in the Scott River case is a positive step toward recognizing some of the adverse impacts that can result from unregulated groundwater pumping,” he said.
The Siskiyou County ruling may take one to two years to go through an appeal by the County, and another one to two years if that decision is appealed to the California Supreme Court. But, James said, “It appears to me that decision is well reasoned and based on good law; thus, it is likely that it would be upheld by the California Supreme Court.”
