Two major flaws with groundwater legislation

The invaluable Maven transcribed a very informative explanation of the complexities of groundwater adjudication.

It’s difficult not to come to the conclusion that the only people who will truly benefit from the fifteen or twenty years that will now be spent trying and failing to execute SB 1168, AB 1739, and SB 1319 are water lawyers.

This is a fundamentally flawed process for two reasons:

1/ Metering. Why try to adjudicate as wicked a problem as groundwater allocation without first building the measuring infrastructure that is needed to adjudicate it?

Describing the process of measuring existing or potential groundwater use, here’s what the Honorable Ronald B. Robie, whose knowledge is undeniable, had to say. From Maven:

“Finally, in order to complete an adjudication, the court has to determine the individual water rights of every pumper in the basin, he said. ‘This is the major task of the adjudication and the one that is most complicated, because everybody has an adverse interest to everybody else. Since we don’t generally require pumpers to document their use, these claims are often based on acres farmed, and then the duty of water. People want to know, did you really farm during those years or not, what were you farming, so lack of ready information is the most important reason to me why these proceedings are so lengthy - because you have to spend so much time finding out what’s going on before you can make the final difficult decisions.’”

“Since we don’t require pumpers to document their use…” I love Robie’s use of passive voice there. He might’ve gone on to say “since pumpers know that data about how much water they use would reduce their options for litigation…” To not meter groundwater use is a failure of this legislation - and of course of political leadership - but worse, it is weak and complicit, full of bad faith acts and actors.

2/ Stakeholders not at the table. How can any process of adjudication take place in this small a bubble, without the public environmental interest being considered a key stakeholder?

Asked whether there were any key issues associated but not directly implicated with groundwater law that should draw legislator’s attention, here’s Robie again, from Maven:

“‘Yes,’ says Justice Robie. [long pause ... laughter] ‘The reason I say that is this is a common law proceeding, and common law doesn’t provide for protection of ecosystems. In other words, when you have a groundwater adjudication, protection of ecosystems or environmental factors of that type are not currently covered in what you normally raise in an adjudication ...subsidence and things like that, they haven’t dealt with ...but you get to that frequently in practical matter through CEQA where mitigation is required, but an adjudication of course is not subject to CEQA, so I think you pointed to something that could be added to it. In an adjudication, you only have the right holders present. There’s no place for intervention by public interest groups or anybody else that I’m aware of.’”

A basin going dry or subsidence, sure. But not environmental impacts. Get your head around that quote. Public and private stakeholders will now spend hundreds of millions, perhaps into the billions, of dollars adjudicating water rights allocations without as fundamental a stakeholder as environmental use being considered.

Posted by John Bass on 15 Dec 2014 | Comments (1)


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