Proposal would target municipal and agricultural wells affecting surface streams
Thousands of wells throughout California may have to apply to the State Water Resources Control Board (“SWRCB” or “Board”) for water right permits, if the Board adopts a sweeping new view of its permitting jurisdiction proposed in a new report.
With limited exceptions, groundwater has long been outside the Board’s permitting authority. A new Board-commissioned report1 prepared by U.C. Berkeley law professor Joseph Sax (“Sax Report”) recommends that the SWRCB adopt regulations that would expand its water right permit program to cover groundwater wells that reduce flows in surface streams. The Sax Report also recommends that in cases where water rights permits cannot legally be required, the Board should prosecute administrative enforcement actions to restrict or shut down groundwater wells that harm water quality, fish and wildlife or recreation on surface streams. To help the Board learn about such wells, the Sax Report calls for new legislation expanding the Board’s investigation powers.
The SWRCB will accept comments on the Sax Report at workshops set for April 10 in Sacramento and April 11 in Ontario. The SWRCB commissioned the Sax Report to review the Board’s water right permitting jurisdiction over groundwater wells that reduce flows in surface streams. Calls for a review of the Board’s water right permitting jurisdiction arose after a 1999 draft Board decision, (In the Matter of Application 30038 et al. (October 25, 1999)), concluded that permits were needed for groundwater wells in the Rancho Pauma and Pala Valleys of Southern California. The draft decision seemed to apply a test so broad that arguably the entire Great Central Valley might be deemed a stream channel whose underground waters are subject to the SWRCB’s water right permitting jurisdiction. Although the draft decision was not finalized, it caused an uproar in the water industry.
California has never had centralized state control of groundwater resources. In fact, the legislature that enacted the state’s first water rights permit program in 1913 specifically rejected proposed legislation that would have regulated groundwater through a water right permit program. The SWRCB’s draft decision in the Rancho Pauma and Pala matter signals an expanding assertion of SWRCB permitting power over groundwater wells, despite the absence of authorizing legislation. At risk are potentially thousands of wells relied upon by cities, industries and farms. If operation of these wells affects flows in any surface stream, the proposed expansion of the SWRCB’s permit program could result in pumping restrictions or even the shut-down of existing wells.
Wide range of well operators would be targeted
The water right permit program advocated by the Sax Report would target wells that reduce flows in surface streams and which are being operated for “appropriative” uses, including all wells supplying towns and cities and agricultural wells used to irrigate land other than that on which the well is located.
Where permits cannot be required without new state legislation, the Sax Report calls for administrative enforcement actions to restrict pumping under the reasonable use doctrine arising from Article X, section 2 of the California Constitution and the public trust doctrine as applied in National Audubon Society v. Superior Court of Alpine County, 33 Cal. 3d 419 (1983). These doctrines have been used to restrict exercise of water rights to protect competing uses of water and the environment.
Surface stream impact would trigger permit requirement
The SWRCB’s water right permit program applies to appropriations of surface waters, like streams and lakes. However, just because water is pumped up from the ground, rather than diverted from a surface stream, does not mean the SWRCB’s permit program does not apply. This is because the California Water Code defines surface waters subject to the SWRCB permit program to include “subterranean streams flowing through known and definite channels.” Water Code § 1200. Since enactment of the Water Commission Act of 1913, the question whether a well needs a permit has depended upon whether it pumps from a “subterranean stream.”
The SWRCB’s long-standing approach to determining whether a well pumps from a subterranean stream focuses on whether underground water is flowing through a known and definite channel bounded by a relatively impermeable bed and banks. The Sax Report recommends that the Board stop focusing on whether the physical characteristics of a “subterranean stream” are present. Instead, the Report recommends that a permit be required whenever a well causes “an appreciable and direct impact on a surface stream.” That is, the SWRCB should adopt an impact-based test to determine if a well needs a permit, even though the actual words in the Water Code contradict such an approach and the Sax Report admits that the Board has never “articulated surface stream impact as itself a test of jurisdiction.”
The Sax Report opines that an impact-based test for defining the SWRCB’s permitting jurisdiction over wells more faithfully carries out the 1913 legislature’s true intent of protecting permitted water rights in surface streams from unregulated pumping by groundwater wells. According to the Report, when the legislature in 1913 limited the permitting of wells to only those pumping from “subterranean streams flowing in known and definite channels,” the legislature did not mean exactly what it said.
Multi-factor test proposed
The Sax Report calls on the SWRCB to adopt regulations embracing the following impact-based approach for determining whether a well needs a water right permit:
- A well 1,000 feet or less from a designated "surface stream recharge area" is presumptively within the Board’s jurisdiction, if either:
(a) A substantial percentage of the well’s annual flow is extracted from the stream recharge area (determined by using the Jenkins method or some similar reproducible method); or
(b) The well produces substantial stream depletion determined as of the period of the most critical flows of the stream system it impacts. The Board shall bear the burden of making these determinations.
Although the Sax Report’s recommendations do not propose a definition of “surface stream recharge area”, the Report’s appendices suggest the area should encompass: (1) a stream’s meander belt; (2) the space between a stream’s initial flood-plain terraces; or (3) "the channel area lying between the channel belt width delineated by the water surface associated with the 100-year return period flood event."
- If either:
(a) The well is screened below a clay layer of such thickness, and where conditions denote lateral continuity, indicating lack of well impact on the stream; or
(b) The well does not create a measurable drawdown at the edge of the stream recharge area, indicating lack of hydraulic influence from the stream, the presumption of jurisdiction shall be rebutted.
A party opposing a presumption of jurisdiction shall bear the burden of rebutting the presumption.
- Whenever a well is found to be presumptively jurisdictional, any well owner may have individual pump tests performed to determine actual well impacts, for the purpose of rebutting any of the foregoing presumptions. Such tests shall be of reasonable duration and intensity. The costs of any such tests shall be borne by the party ordering the tests.
- Whenever a well is found to be presumptively non-jurisdictional, the Board (within the scope of its ability under existing law to gather information) or any protestant may have individual pump tests performed to determine actual well impacts, for the purpose of rebutting any of the foregoing presumptions. Such tests shall be of reasonable duration and intensity. The costs of any such tests shall be borne by the party ordering the tests.
- Following any such tests, and after considering the evidence before it, the Board shall make a final determination of jurisdiction.
- The jurisdictional presumptions of ¶ 1, above, shall not apply in cases of long-standing hydrological disconnection.
Permits would trigger new regulatory reviews, pumping restrictions and litigation
If the SWRCB adopts the Sax Report’s approach to determining when groundwater wells need water right permits, thousands of wells might suddenly need permits that no one previously thought necessary. With permits come a range of potential problems.
First, it may be impossible to obtain a water right permit for wells affecting any of the many rivers and surface streams designated by the SWRCB as fully appropriated. The Board generally rejects applications for permits on fully appropriated streams. If no water is available for appropriation, wells could be shut down by the Board under the threat of civil administrative penalties or under threat of litigation by the California Attorney General.
Second, permit applications are likely to trigger procedural hurdles that could result in the denial of a permit or permit conditions that significantly limit groundwater pumping. Among these are: (1) application protests by competing water users, environmental groups or government regulators; (2) review under the California Environmental Quality Act (“CEQA”) potentially resulting in restrictive mitigation measures or permit denial; (3) initial review and continuing supervision under the public trust doctrine; (4) streambed alteration agreements with the California Department of Fish and Game; and (5) review by the U.S. Fish and Wildlife Service and National Marine Fisheries Service of impacts on threatened or endangered species, including chinook salmon, steelhead and pond turtles.
Each layer of government regulatory review will present difficult legal and factual questions, including determining the environmental baseline for assessing impacts of a groundwater well that already exists, and may have been pumping for decades. Moreover, each layer of review and supervision provides a potential basis for a government regulator to shut down or restrict use of a well and also provides potential grounds for lawsuits filed by environmental groups or competing water users seeking to stop or restrict groundwater pumping.
What can be done now
The SWRCB workshops on April 10 and April 11 should be used to submit written, and perhaps oral, comments regarding the Sax Report’s proposal to expand the Board’s water right permit program and administrative enforcement actions to groundwater wells that have some arguable connection to surface streams. The members of the Board, who are appointed by the governor, ultimately are responsible for deciding whether to adopt, modify or reject the Sax Report’s proposal.
Kronick Moskovitz Tiedemann & Girard clients desiring further information on the Sax Report and preparation of comments regarding the expansion of the SWRCB’s water right permit program are welcome to contact Dan O’Hanlon, Janet Goldsmith, Cliff Schulz or Eric Robinson.
1 Titled "Review of the Laws Establishing the SWRCB’s Permitting Authority Over Appropriations of Groundwater Classified as Subterranean Streams and the SWRCB’s Implementation of Those Laws," the report was released January 19. 2002. The report, its appendices and related information can be downloaded from the SWRCB’s web site at http://www.waterrights.ca.gov/Hearings/specialprojects.htm#legal.