State's groundwater debate unquenched
A state panel rejects regulations, but the issue remains hot.
By Stuart Leavenworth – (Sacramento) Bee Staff Writer
Published 2:15 a.m. PDT Sunday, May 12, 2002
It percolates through the ground, seeps into lakes and rivers and provides
more than a third of California's water. It is a vast, overtapped and
unregulated resource, and its status probably won't change any time soon.
Last week, under pressure from irrigators and water agencies, a key state
board announced it will not assert more authority over California's
groundwater, effectively ignoring the recommendations of a legal scholar it
had hired.
The board's decision means that farmers and cities can continue to sink
wells with little threat of state oversight, but it hardly puts the nail in
the coffin of California's great groundwater debate.
Even with state officials reluctant to act, groundwater will continue to
pose legal and environmental challenges as California grows, said Joseph Sax,
the Boalt law school professor whose recommendations were shelved last week
by the state Water Resources Control Board.
"This issue will not go away," said Sax, considered one of the
nation's top scholars on water law. "As I have said, this will
eventually be decided in the courts ... The only question is when."
Taken for granted by most Californians, groundwater is a catch-all term
for water that lies in deep rock formations -- aquifers -- as well as more
shallow subsurface streams.
Researchers believe that California's aquifers have the capacity to hold
1.3 billion acre-feet of water, enough to serve about 2.6 billion households
for a year. Scientists estimate that in modern times, however, Californians
have depleted those supplies by an estimated 35 percent, sometimes drying up
rivers or lakes.
South of Sacramento, for instance, the flow of the Cosumnes River has been
steadily reduced because of urban and agricultural groundwater pumping in the
basin.
"The river ceases flowing earlier in the year, stays dry longer into
the fall and dries over an increasingly long stretch," said Peter
Yolles, a senior field representative for the Nature Conservancy, which
manages a preserve along the river.
For decades, scientists and activists have urged state lawmakers to set up
a permit system for groundwater extractions, as do most other states in the
West. But farmers and water agencies, worried about infringements on their
historic rights, have successfully opposed any major changes to the law.
As a result, groundwater uses in California remain governed by a 1913
state statute. The law prohibits the state water board from regulating
"percolating groundwater," but allows it to regulate subterranean
streams flowing through "known and definite channels."
For the past 89 years, lawyers have made fortunes arguing about these
words. There have been lawsuits, settlements and ponderous evidentiary
hearings before the state board, often focused on two questions: What is a
subterranean stream? And when is it flowing through known and definite
channels?
Faced with a particularly controversial case near San Diego, the state
water board asked Sax, a University of California, Berkeley, law professor,
if they could hire him to review the statutes. The bow-tied professor jumped
at the chance.
Speaking at a conference in Monterey last week, Sax described how he and
his assistants pored over archives, trying to find reports and commission
transcripts that would provide some insight into the intent of long-dead
lawmakers.
"I viewed my task somewhat the way an archeologist views his
tasks," Sax said. "You are dealing with what history has provided
you."
When completed in January, Sax's report dropped like a bombshell. In what
his critics called a "creative interpretation," Sax found that
lawmakers intended the state to have broader powers over groundwater than
commonly has been supposed.
Instead of limiting itself to groundwater wells directly next to a creek
or lake, Sax argued the state board should expand its jurisdiction to
groundwater pumping that has had a demonstrated impact on a stream or lake.
"It should be kept in mind that modern-day, high-powered pumps were
not extant at that time," Sax wrote in reference to the 1913 era. The
central concern of lawmakers back then, he said, "was impact, not
proximity."
In two workshops last month, the state Department of Fish and Game and a
handful of environmental groups turned out to support Sax's findings. They
were countered by dozens of irrigation districts, the Building Industry
Association and Association of California Water Agencies, which argued Sax
went too far in interpreting the intentions of state lawmakers. ACWA, made up
of agencies that deliver 90 percent of California's water, urged the board in
a written statement not to act on Sax's recommendations "unless it wishes
to engage in a long series of legal battles with water users."
The drama climaxed Wednesday, when ACWA invited Sax and state water board
Chairman Art Baggett to attend its spring conference in Monterey and discuss
the controversial report.
Sax, wearing his bow tie, stood before 1,000 of his critics and lifted a
stack of letters that many had written criticizing his findings.
"The only thing thicker than my report is this pile of
criticism," he joked. "I have a good pile of protection in case any
missiles come my way."
Sax then launched into a scholarly explanation of how he approached his
research. But many in the audience hadn't come to hear a lecture. Instead,
they were waiting to see if Baggett would say something of substance about
the board's position.
Baggett, an avid musician, didn't disappoint the crowd. First, with
apologies to Bob Dylan, he joked about his "subterranean stream homesick
blues." Then, to the relief of many of those assembled, he announced his
board had no plans to enact regulations based on the Sax report.
"If the Legislature intended the board to regulate groundwater, it
would state so very clearly in the law," said Baggett, an El Portal
lawyer appointed by Gov. Gray Davis.
At the same time, Baggett acknowledged that groundwater quantity and
quality is a serious problem in California. Each year, cities and farms take
more water from the ground than nature can replenish, and Baggett challenged
ACWA to be part of the solution.
"Use your existing authority under the law to look at more comprehensive
regional approaches," Baggett said. "The challenge is in your hands
. . . A lot of people are watching."
Many environmentalists are calling Baggett's decision a predictable
cop-out and are pondering how to respond. Should they try again to persuade lawmakers
to change the state's water code, a political "nonstarter" in the
view of many? Or should they seek out a court case where Sax's arguments
could be used to set legal precedent?
"Virtually every Western state regulates groundwater, but not California,"
said Brendan Fletcher, a lawyer for Defenders of Wildlife in Sacramento.
"Groundwater and surface water is a single resource, and somehow we need
to address that."
As for Sax, he said he wasn't surprised that groundwater will remain
unregulated in California.
"I knew it was coming," he said. If Baggett was preparing to
rock the water world, Sax said, he wouldn't have picked the ACWA conference
to announce his intentions.
About the Writer
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The Bee's Stuart Leavenworth can be reached at (916) 321-1185 or sleavenworth@sacbee.com .
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