While we here at Small & Schena LLP do not specialize in water rights, we are keeping tabs on the response to the ongoing drought in California with keen interest. It goes without saying that every person and nearly every business is dependent upon a readily available supply of clean freshwater. Where we turn to maintain our cities when the rain stops is an evolving question.
Groundwater is particularly valuable during times of drought as other surface-level sources tend to dry up. Accordingly, during dry periods groundwater may be pumped faster than replenished. Besides the removal of a vital water source, over-pumping may result in a host of other problems such as serious erosion of both natural and manmade structures.
California, like many western states, has traditionally allowed most landowners to remove as much water as they would like from their own property. The water rights system was crafted with the mindset of encouraging landowner investment when the State was an open frontier. The antiquated system can be great for the person who pumps the most, but not often for the community as a whole. Cue the image of Daniel Day-Lewis drinking your milkshake and your water.
As we enter into our third year of the drought, we are seeing a shift away from winner takes all. Tuesday, Governor Brown signed California’s first legislation designed to limit the pumping groundwater. The legislation, which consists of three bills: AB 1739, SB 1168, and SB 1319, does not itself proffer the solution but instead requires local agencies to create sustainability plans and authorized the California Water Resources Control Board to intervene. Water meters to measure withdrawal of groundwater along with civil penalties for overconsumption appear to be on the horizon.
The use of groundwater is a long-term issue and we expect the laws to necessarily remain in flux in search of a real solution. While other states facing similar shortages have crafted stricter laws that in many cases prohibit the pumping of groundwater absent government agency, Sacramento has not gone that far – yet.