Local Groundwater Withdrawal Permitting Laws in the South‐Western U.S.: California in Comparative Context

Abstract

The Sustainable Groundwater Management Act (SGMA) aims to control, for the first time in California's history, the state's significant use and depletion of groundwater. SGMA gives local agencies a high degree of discretion in relation to a new permitting power, but the discretion is a double-edged sword: agencies gain maximum flexibility to tailor their regime to local conditions, yet the statute provides no direction on appropriate components of a groundwater permitting regime. We introduce SGMA and the broader legislative context to its permitting power, and we explain the continuing common law context in which the legislation operates. This information is used as the foundation for a comparative legal analysis of fundamental elements of permitting regimes. We compare a selection of six other south-western permitting regimes established in legislation for areas recognized as requiring intensive management through permitting: "special permitting areas" (SPAs). We find that permitting regimes in south-western SPAs share a structure containing several almost universal elements, although the policy settings that apply to those elements vary widely. The established permitting regimes in the other south-western states' SPAs may inform Californian agencies seeking to use their new permitting power for the first time, as well as water agencies further afield, as to important components of a permitting regime, and the different policy settings that could apply to those components. Californian local agencies, and its Department of Water Resources, which is charged with providing local agencies technical advice, should have regard to these permitting possibilities.

The Role of Permitting Regimes in Western United States Groundwater Management

“…Even on preliminary data, we see a great degree of diversity among western U.S. permitting regimes (Nelson and Perrone ). States invest different types of agencies at different levels of government with permitting powers.…”

“…Permitting regimes usually include criteria to be considered by the decision maker to ensure that the proposed withdrawal will, for example, avoid adverse impacts on existing wells and surface water right holders, fulfil a beneficial use, and be in the public interest. Informational tools like metering and monitoring requirements, and financial or other sanctions for noncompliance usually accompany the permit criteria (Nelson and Perrone ).…”

“…California was the last to incorporate a widely applicable groundwater withdrawal permitting power (though this power did previously exist in some smaller geographic areas known as special act districts) when its Legislature passed the Sustainable Groundwater Management Act (SGMA) of 2014, which has yet to take effect fully. The power that SGMA grants local agencies to require groundwater withdrawal permits is one of its unsung strengths (Nelson and Perrone ). In some cases, permitting regimes are central parts of the state's overall groundwater management system, as in the regimes administered by the State Engineer in New Mexico and the Department of Natural Resources and Conservation in Montana.…”

“…Permitting regimes provide an important foundation for managing groundwater in many western states. Across the West, the geographic reach of permitting regimes is expanding (Nelson and Perrone ). It is in this context that comparative analyses focused on western states' permitting regimes would complement existing literature focused on groundwater governance (e.g., Bryner and Purcell ; Blomquist et al ; Gerlak et al ; Varady et al ; Megdal et al ) and groundwater law concepts (e.g., Spiegel ; Weeks ; Richardson ; Reiblich and Klein ).…”

Column Theme: Groundwater Management Directions—Stewardship to Sustain Our Water Resources

“…Permitting regimes provide an important foundation for managing groundwater in many western states. Across the West, the geographic reach of permitting regimes is expanding (Nelson and Perrone 2016). It is in this context that comparative analyses focused on western states' permitting regimes would complement existing literature focused on groundwater governance (e.g., Bryner and Purcell 2003;Blomquist et al 2004;Gerlak et al 2013;Varady et al 2013;Megdal et al 2015) and groundwater law concepts (e.g., Spiegel 2010;Weeks 2010;Richardson 2012;Reiblich andKlein 2013-2014).…”