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Putting California's New Groundwater Legislation in Perspective

Digger - February 26, 2015

The 11.10. 2014 edition of High Country News, which covers environmental issues in the American west, contains an article "California's Sweeping New Groundwater Regulations: Will the law finally mean better aquifer management for the drought-stricken state?" that should be required reading for every Borregan. In a nutshell, the answer to the rhetorical question it poses is: "It's a start, but..."

According to the article, the new California Sustainable Groundwater Management Act (SGMA ) offers little of the sweeping change that is clearly needed to combat relentless depletion of the State's groundwater resource and manage California's aquifers, including Borrego's, sustainably.

One generally agreed upon fault in the SGMA is its failure to give the State power to ban pumping outright.

Some experts believe the SGMA's deadlines for compliance are far too lenient, and the president of the California Farm Bureau Federation, the State's powerful agricultural lobby, warns that his members strongly oppose state oversight and will inevitably bring lawsuits that could indefinitely delay or prevent its implementation.

Others cite vagueness in the SGMA's language; e.g. even the fundamental concept of "groundwater sustainability" is not defined precisely. Such imprecision, says Jay Famiglietti, a hydrologist at the University of California Irvine, allows local authorities too much leeway in interpreting the law. One local agency might limit pumping in such away as to avert long-term depletion of an aquifer while another could accept eventual depletion as unavoidable and merely seek to prolong inevitable. For that reason 'opportunity for local (control) assuages the fear that the state is going to come in and say you can't pump this much groundwater' and is an important reason the law passed the State Legislature according to Famiglietti.

Robert Glennon, is a University of Arizona Professor of Law & Public Policy who teaches water law and is actively involved in a variety of water issues. He warns that compounding the debilitating effects of the law's slow roll-out, squishy definitions, and undue deference to local agencies, is the fact that those who benefited from unchecked pumping that lead to the groundwater crisis will, in all likelihood, retain a prominent role in the Groundwater Sustainability Agencies established by the SGMA to solve it and points to similar laws in Texas and Nebraska that have done little to curb overdrafts.

A more promising model, according to Glennon, can be found in Arizona where the 1980 Groundwater Act allows prohibition of new wells in severely overdrafted basins, limiting existing groundwater-rights holders to specific quantities of water, and reducing overall water use to statewide targets. In Glennon's opinion any 'blueprint for a successful plan in California would include these basic elements."

You have heard nothing of the foregoing from either the Borrego Water Cabal (BWC) or its wholly owned subsidiary the BWD - nor will you. For these two paradigms of Pollyannaism the SGMA is the be all and end all of solutions to Borrego's critical groundwater problem, its many serious and obvious defects notwithstanding. As soon as the first hint of new legislation emerged the District, in a paroxysm of premature epistemic closure, began refusing to even consider any solutions beyond those allegedly contained in the rumored new law or suggestions for implementation not vetted by the BWC. The BWC, for reasons cited above and because it is dominated by pumpers, happily blessed the BWD's passive, languid, contingent, flawed, and hypocritical approach. To compound the effrontery, one of the BWC's recommendations would sustain, sanction, and sanctify exactly the fox-in-the-henhouse problem that Robert Glennon specifically cautions against.

Even the BWD now apparently realizes that "[b]asiclly the Groundwater Sustainability Act is a huge unfunded mandate." It is time the BWD board stops representing the legislation as a panacea that absolves it of responsibility for addressing the overdraft and treats it instead as what it is: an incomplete and imperfect framework within which they will somehow have to craft and pay for specific local solutions. Borrego cannot wait for the State to resolve the many ambiguities, deficiencies, and conflicts that encumber the new law before acting to end the overdraft.

Unfortunately, the BWD board has fallen victim to its own pandering, i.e. telling community members what they want to hear and making promises that can't be kept. It's time they face reality and make the necessary hard choices they've desperately been pretending can be avoided.

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