Groundwater is one of the world’s most important natural resources,but groundwater management has traditionally been governed by lax and uneven legal regimes which tend to focus on the extraction of groundwater or groundwater quality, rather than groundwater recharge. In a January 2022 webinar from Berkeley’s Center for Law, Energy, and the Environment, Dave Owen, professor at UC Hastings School of Law in San Francisco, discusses the many human activities that can affect groundwater recharge, the existing legal doctrines that affect groundwater recharge, occasionally by design but usually inadvertently; and how more intentional and effective systems of groundwater-recharge law can be constructed.
Dave Owen began with some notes about groundwater in general. First, groundwater is very important, especially in California. We are heavily reliant on it for our water supplies and are likely to become more reliant on it as climate change changes surface water flows, snowpack, and storage, here in California and elsewhere in the world.
“In a hotter, drier world with more episodic surface water flows, groundwater is a very appealing alternative,” he said.
But the problem with trying to increase our dependence on groundwater is that we’re already overusing it; we’re pulling more groundwater out of the ground than is being replenished. That’s a significant issue here in parts of California and elsewhere in the world. It impacts human users and environmental systems as the aquifers are no longer recharged by inflows.
The legal world is familiar with groundwater problems and has developed responses, but most groundwater law has focused on protecting groundwater from contamination. The major federal and state laws governing groundwater contamination are shown on the left of the slide. Some groundwater laws focus on managing groundwater extractions through a system of rights and legislation like the Sustainable Groundwater Management Act.
“What we don’t typically talk as much about is the system of laws that might govern the movement of groundwater into the ground,” said Mr. Owen. “You might initially think, ‘Why would we need such laws? Gravity can handle that on its own; all the water needs to do is move downward.’ But it turns out that there are a lot of different ways in which human activities affect groundwater recharge.”
Human activities that affect groundwater recharge
He briefly reviewed the human activities that affect groundwater recharge:
Development: When urban areas are developed, it involves roofs, pavement, and other impervious surfaces that water can’t get through. This means that water that previously might have infiltrated into the ground and been stored as groundwater instead becomes surface water and stormwater flows, which are a pollution problem, among other things.
However, he noted that the relationship isn’t necessarily that simple; urbanization often means removing vegetation which reduces water consumption. There are usually a lot of water pipes, which can leak. So the net effect of urbanization isn’t necessarily to decrease groundwater storage, but it can be.
Agriculture: Farming activities can have similarly mixed results. Sometimes converting an area to agriculture will actually increase groundwater recharge; water might be imported for irrigation, or crops with low water consumption replace vegetation or other crops with higher water consumption – activities that can increase recharge. Conversely, if crops are being farmed that are heavily water consuming, the effect can be to decrease recharge.
Forest management: How forests are managed can also significantly affect groundwater recharge. In general, the more biomass a forest produces, the more water it’s using, and less recharge will occur. So actions like fire suppression and promoting fast-growing even-aged forests will likely mean less groundwater recharge. On the other hand, when a forest fire obliterates a forest, there may be more recharge, at least until the forest begins significant regrowth.
Flood control: Groundwater recharge can be impacted on a large scale through flood management actions. Typically, in an undeveloped river system, floods spill over the banks; some of those floodwaters will infiltrate into the ground and recharge the aquifer alongside the river, often flowing back into the river later in the year and sustaining flows. But when we build levees or otherwise isolate rivers from their floodplains, we stop, or at least slow, those recharge processes.
These processes tend to occur at the landscape scale and are largely unintentional; we’re not actively making an effort to either limit recharge or increase it.
Activities that increase groundwater recharge
But there are also several different ways in which we enhance groundwater aquifer recharge by deliberately trying to increase the amount of water that gets into the ground:
Water banking: The graphic on the slide is from the Kern Water Bank, a major water bank in the Southern San Joaquin Valley which diverts surface water flows from rivers or canals and sends those flows into recharge basins or injection wells to recharge the aquifer. The water is then retrieved at a later date for use.
Agricultural managed aquifer recharge: Agricultural fields can be intentionally flooded, with the water will infiltrating into the ground, where it can be potentially withdrawn for later use.
Stormwater capture: In urban areas, particularly Southern California, the stormwater flows running off the impervious surfaces are gathered and used to recharge the groundwater basin.
Treated wastewater: Wastewater can be treated and discharged into a recharge basin to recharge the aquifer. This can have the effect of further cleaning the water as it moves through the ground. The water can then be pumped out and used.
Legal issues and managed groundwater recharge
These different processes can be thought of as occupying a continuum, as shown on the graphic. On the left-hand side are processes that tend to be at more landscape scales and less intentional. The goal isn’t necessarily to manage recharge; it’s just an incidental, albeit significant, consequence. On the right side are the more focused and intentional efforts to manage recharge, such as diversion and direct recharge programs.
The Center for Land, Energy and the Environment (CLEE) has been researching groundwater recharge that is actively managed. 
A couple of years ago, they began a series of case studies of different groundwater recharge projects and held a conference that ultimately led to a series of articles published Case Studies in the Environment, a UC Press peer-reviewed journal. CLEE continues to work on these issues.
Several legal issues kept coming up through that work, such as if you have to have a water right to capture stormwater or whether you can obtain a water right to inject water into the ground without a clear sense of how the water will eventually be used. There are also challenges with accounting for water put into the ground, managing withdrawals, and permitting.
“A lot of the legal systems that govern groundwater, whether it’s water rights or Safe Drinking Water Act permitting, were developed without much thought about groundwater recharge,” said Mr. Owen. “It wasn’t a focus. They were developed by people who had real concerns about taking water out of surface waterways and speculatively storing it, and injecting potentially polluted water into the ground. So all of that can make very managed groundwater recharge legally complicated, even though many of us view it as crucially important to future water management.”
However, these issues apply to highly managed recharge, which impacts a small percentage of the landscape and a small percentage of the aquifer recharge that actually occurs. But what about everywhere else? What about the more landscape-scale and generally less intentional recharge practices?
What about diffuse, lightly managed (or unintentionally managed) aquifer recharge?
Mr. Owen then delved into his research on existing legal regimes and the possibilities. This work is discussed in greater detail in an article published in the May 2021 Stanford Law Review.
Development
With respect to development, there are common law rules that deal with the recharge impacts of development. In particular, there’s a rule called the ‘common enemy rule.’ which still applies in many states (or its offshoots still apply). The rule basically says that if you create additional runoff by developing your land, which impacts your neighbor or some other landowner, that other landowner has no claim against you.
“In other words, it basically says that if you limit recharge (and recharge is never mentioned in the case), and by doing so, create problems for other people, that’s their problem. It’s not yours.”
He noted that regulatory laws are somewhat more constraining, the most important being the Clean Water Act and municipal stormwater permitting. For example, an element of a municipal stormwater permit requires a program that addresses post-construction runoff, which typically means trying to limit the amount of that runoff and creating more infiltration or recharge.
“In the areas where these permits apply, and where the provisions have some teeth to them, this can be an effective way of both limiting the amount of problematic surface stormwater and increasing groundwater recharge,” said Mr. Owen. “The catch is that most of the American landscape is not covered by MS-4 permits, and not all MS-4 permits are particularly effective. So the fact of the matter is that these laws are relatively boutique and focused in their application.”
Floodplains
With floodplains, the overall story is somewhat similar. At the federal policy level, the general goal was to build levees and keep rivers out of their floodplains to keep those floodplains dry; state and local laws sometimes do similar things. And land use law in California and elsewhere has often allowed floodplain development, so the net consequence has been to limit recharge in floodplains significantly.
“This has adverse effects on river flows later on in the season, and neither the floodplain landowners or the builders and operators of these levees have ever had any obligation to compensate water right holders or environmental systems for the recharge impacts created by these flood policies,” said Mr. Owen.
Forestry
In the United States, national forest law arose partly out of concerns for limiting destructive flooding, which was occurring after forests with clear cut. However, that initial focus on water has not translated into a deeper or longer-term focus on the effects of forest management practices on recharge.
Instead, at the federal level, the primary forest policy was to maximize biomass production through even-aged management, clear cuts, and fire suppression. The result, in many cases, was to create much more dense forests that consume more water and are much more vulnerable to fire, among other things. But effectively, these policies limited groundwater recharge.
“If you look at National Forest statutes and regulations, you’ll see basically nothing about groundwater recharge,” said Mr. Owen. “The same is true of Forest Service reports; they talk briefly about recharge, but there’s not even a suggestion on a governing legal regime. Even in national forest case law, groundwater recharge hardly ever comes up – and if it does, it’s just a passing mention, and state law, including California law, is not all that different.”
“So the upshot is that in forests, where most of the precipitation in the West actually occurs, we don’t really have a legal regime that either incentivizes groundwater recharge or creates penalties for limits on that recharge.”
Agriculture
Groundwater recharge isn’t really considered when lands are zoned for agricultural use, nor when water rights are awarded.
The one exception is the common law doctrine called the ‘Rule of recapture’ that allows a landowner to reclaim water recharged through their irrigation practices. So, if there’s excess water coming off your fields and it gets into the ground, you can sink a well and pump it back out.
But other than that, the theme with agriculture and recharge law on the landscape scale more generally is a theme of very limited legal coverage and incidental coverage largely by accident, he said.
Envisioning more robust regulation of groundwater recharge and land use
The next question is, how could things be different? Mr. Owen pointed out that it wouldn’t be easy to create more robust systems of groundwater recharge law. There are several challenges: Groundwater recharge is not a visible process, it’s hard to see, and often it’s difficult to regulate or even create the motivation to regulate things we can’t see. It’s often a very diffused process. It’s complicated.
It also can often arise from activities that otherwise we would not want to promote, for example, clear-cutting forests and to keep them from growing back could increase recharge, but there are many reasons why we wouldn’t want to do that. Leaking urban pipes increases recharge, but there are many reasons why leaking urban pipes is not generally desirable.
So there are a lot of instances where developing more robust groundwater recharge law really wouldn’t be a good idea; it wouldn’t be worth the bother.
However, there are also likely to be places where it would matter, such as where significant amounts of recharge are being generated or where water scarcity is a motivator. There needs to be sufficient information to support regulation, and negative incentives created by regulatory intervention are minor or manageable.
Mr. Owen noted this doesn’t exist everywhere, but there are some areas where some or perhaps all of these criteria could be met.
“It’s not just in the United States,” said Mr. Owen. “Maybe the most famous international example involves Cape Town, South Africa, which is actively trying to manage invasive vegetation throughout its watershed to increase groundwater recharge and hopefully avoid a future water crisis.”
“There’s another deeper challenge if we’re going to try to develop better groundwater recharge law, and that’s trying to figure out what the underlying ethic or underlying goal of the law should be,” he continued. “I’d argue that there is an ethic already underlying existing groundwater recharge law, and it’s very much a laissez-faire ethic. It’s basically saying that you can do what you want on your property. If it adversely affects recharge, you will have no obligation to compensate anyone else. And if it benefits recharge, you have no way of monetizing that benefit. So, essentially, you do what you want, and others will do what they must.”
Mr. Owen pointed out that it could be different. “We could say that maintaining at least some level of groundwater recharge is just a responsibility associated with land ownership. And in fact, we do say this in urban settings in the specific context of Clean Water Act permitting in post-construction runoff, but sometimes that’s in relatively limited areas. So, that might mean both requiring landowners to compensate somehow for adverse effects on recharge and benefit somehow from steps that they take that create increased recharge.”
“However, I don’t think it’s reasonable to say that you can’t have any effect on recharge at all. All land uses that we engage in impact recharge in some way. And so some toleration of change seems appropriate, as it is in just about every other area of land use law.”
Still, several things could be done: Change the common enemy rule; integrate more discussion of groundwater recharge into NEPA, California Environmental Quality Act, forest management plans, and the like; or deploy more prescriptive regulation, as is done to some degree in the Clean Water Act.
A particularly promising innovation is stormwater impact fees, said Mr. Owen. The model would be that of a stormwater utility, where each landowner in the utility’s service area pays a fee based on the amount of impervious cover on their property. The fees can be reduced if the landowner takes steps to infiltrate stormwater on that property, but the basic idea is that the landowner’s fee is proportional to the stormwater burden they create. Then the stormwater utility takes those fees, aggregates them, and uses those funds to support stormwater management activities, such as improving forest management.
“By consolidating the fees, you can often create a much more economically efficient management approach than you would if you had several dispersed projects going on all at the same time,” he said. “This is a very significant shift from the way that we do things now. But I think this is a reasonable approach that we use in other realms, and we could use it with groundwater recharge as well.”
QUESTIONS AND ANSWERS
QUESTION: The Governor recently released his proposal for the 2022 California state budget, including $30 million to support groundwater recharge efforts. What are your thoughts on the appropriate role for the state in supporting managed aquifer recharge in this way? And what is the appropriate scale, given this $30 million proposal statewide for 2022?
Dave Owen: “As for the appropriate role for the state, I would say a couple of things. There is confusion with some water managers about how to get a groundwater recharge project in place, how to navigate permitting systems, and who to work with. I think that is a place where the state and research entities like CLEE can be really helpful. So to the extent that the state can help streamline processes and create criteria so that people understand what’s going to be a project that gets approval relatively easily and what is not going to fly, I think that’s really valuable.
“$30 million is not very much money. But with $30 million, you can do some regulatory streamlining and guidance and help people navigate permitting processes for recharge much more effectively.”
“I think another appropriate role for the state is to provide seed money for communities that need help with recharge but don’t have much money on their own. So if the state is throwing an enormous amount of money at Metropolitan’s water system, that’s probably not the best allocation. But for smaller community water districts or disadvantaged communities, I think there’s a real role for the state to play in helping to fund infrastructure and guide the process.”
“What I would not want to see the state doing is just paying to support people taking water out of surface waterways, where there are already problems with levels of withdrawal, and then putting that into groundwater; that’s essentially paying potentially to solve one problem by creating another. But I think by providing more guidance, the state can help people avoid proposing that sort of project in the first place and help people identify where promising projects might occur.”
QUESTION: I’m curious about your notion of a groundwater recharge ethic. Can you talk a little bit about a different tact for encouraging recharge, which is incentives? Why would one actively recharge groundwater in the first place or do any change to their behavior or activities to enable more groundwater recharge to occur? How about the common pool resource issues that are involved in groundwater?
Dave Owen: “There are two questions there. One is to explain why people don’t do this on their own. And then the other is how an ethical change is useful in that situation. So let’s use a concrete example. Let’s imagine that you are a timber company that owns a lot of land in the upper part of a watershed. And because you own that land and manage the level of forest growth on that land, you’re effectively managing recharge. But, right now, the recharge that is occurring on that land and contributing to levels of flow further downstream is essentially economically meaningless to you. Because as the timber company, you don’t have the water rights, and you don’t need the water rights; it matters to people who are withdrawing water from the river that comes out of that forest further downstream.”
“So if you promote recharge, they will benefit, and they won’t have to pay you for it. And if you manage your forest in a way that reduces recharge significantly, they will not have water available or will have less water available, and they will have no remedy against you. So you won’t manage it. You won’t worry about it. In economic terms, that’s classic externality; it’s a cost for a benefit borne by somebody else. And usually, people don’t worry about externalities.”
“Then, why a different ethic? The ethic that we have right now is to say, you landowner, you should just do what you want on your property, and it’s other people’s problem. And I think in some situations, that leads to outcomes that just aren’t very fair. You could use the forest example or the floodplain example; if you benefit from some land management practice, that means that someone else downstream no longer has water access. Or that means that an environmental system downstream no longer has flow. That’s a significant cost that you’ve imposed on somebody else.”
“In general, in our society, we don’t tell people to manage your land however you want, and everybody else will just bear the consequences. We also don’t say you can’t have any consequences on people; we strike a balance somewhere between. The basic idea is that you have the right to have some effects on your neighbors, and they have the right to have some effects on yours, but you don’t have a blank check. Right now, with groundwater recharge, we’ve largely have the blank check. And that’s where I think there is the need for an ethical shift.”
QUESTION: Is there a role for groundwater recharge in addressing subsidence and the other problems that subsidence ends up causing?
Dave Owen: “There’s a technical dimension to this question, which by recharging, can we reverse some of the subsidence that has already happened? There are probably a lot of geologists out there who can answer that question better than I can. My understanding is that the answer is often no; that once it happens, it’s very difficult to reverse. But then the second part of the question is, through changing recharge management practices, could we stop additional subsidence from occurring? And absolutely. Subsidence happens when you have more water coming out of the aquifer than is going in. And we can address those problems through some combination of taking less water out and putting more in. Most of the focus of our legal systems has been taking water out. So that’s a very appropriate place to focus. But I think we also need to think about putting water in.”
QUESTION: Where stormwater fees have been implemented, how have they worked? And in particular, how have they dealt with Prop 218 and Prop 26 considerations in California?
Dave Owen: “Specifically for water, the pioneer of this impact fee approach has been the Nature Conservancy. And the examples I’m aware of are not in this country. There may have been some in this country of water funds that are perfectly focused on recharge. The best example that I can think of is Cape Town. And in all of the settings that I’m aware of, the way it has worked is it’s been entirely incentive-based for the landowners and entirely fee-based for the water users. And there’s some practical sense to that. If you have more money in the city than you do out in the rural landscape, maybe the best way to get something done is for the city to pay for it.”
“The other question was about Prop 218. For those of you who are not Californians and are not familiar, California has very restrictive laws that have come from a series of ballot initiatives that limit the ability of local governments to charge taxes and fees, and particularly that limit the ability to do any sort of redistribution of wealth through fees. So, where an agency charges higher fees to people who can afford it better and lower fees to people who are poor, we, as Californians, have decided that we don’t like that. And so it makes it hard for local water districts, local governments to fund a lot of things that I think many of us would think of as very sensible policy.”
“With stormwater utilities, my understanding is that those are harder in California than in other places because of these accounting rules, but not impossible. You just have to document that there is a direct relationship between the fee you are charging and the burden that has been created. So there’s a lot more math, there’s more homework that you have to show. And I think the same would be true with a water impact fee or with a recharge fee.”
QUESTION: What about implications of differing water quality in the source water, whether that’s stormwater or water from a surface water source or somewhere else? And the water quality in the aquifer that’s being recharged both from a physical and legal perspective?
Dave Owen: “This is something that Mike and I and others are planning to do more work on, so I’ll give a preliminary answer. Of course, if we have this conversation in a year, I would have a much better answer.
“That is definitely a problem. You can have water that is being recharged that is of lower quality than the water that is already there, and even if it’s of higher quality, if you’re recharging water that has pollutants in it into a drinking water source, there are, at the very least, Safe Drinking Water Act complexities that are associated with that.”
“I’m from New England, originally. And when I first came to California to go to law school and started learning about the extent to which California pumps water out of aquifers in heavily urbanized areas, I was blown away. Because where I was from, we didn’t really do that very much. The cities got their water from someplace far away, and smaller towns would pump water out of aquifers, but they would be pretty choosy about where they got it from. The basic assumption was it if it’s drinking water aquifer, you keep it clean.”
“In California, we don’t do it that way. We pull water out of heavily urbanized areas where all kinds of overlying land uses pose threats to the aquifer. And we monitor and we treat, and it’s not perfect, but we have scarce water. So we do what we can, but – and I feel like this is a sort of a partial answer, but again, it’s something that we will learn more about and work more on it. I think it creates a permitting challenge. But there are also some creative things that you can do. There are places in Southern California that are working on integrated Clean Water Act, and Safe Drinking Water Act permits that involve wastewater discharge where you wrap stormwater wastewater and in recharge all into one sort of permit. And I think that’s likely the future. That’s where the promise lies, but it is definitely an issue.”
QUESTION: Would the rule of recapture allow recharge to groundwater to be traded or sold? And if so, does that then constitute a perverse incentive?
Dave Owen: “The answer to the first part of the question is yes. The recaptured water is considered part of your surface water right, so it should be possible to transfer or sell it under the same terms as any other surface water right. There may be complications from a legal doctrine called the no-injury rule, which basically protects junior water users from the consequences of water transfers. But beyond that, there’s no reason why that water would be subject to any different transfer rules than any other part of your water right.”
“In terms of the incentives, as I was reading about the rule of recapture, I was thinking about the incentives that it creates, and it seems to me that they cut in multiple directions with no obvious aggregate result. There may be a real result out there in the real world, but just based on doing thought exercises rather than some empirical study, I couldn’t decide exactly whether it was good for recharge or bad for recharge. I think the bottom line is it encourages you to recycle water, reuse it and get some benefits from it. That could lead you to use water more wasteful or copiously because you know you can recapture it later, which might actually be good for aquifer levels and storage. Or it could lead to pumping more groundwater, which could be bad for aquifer levels and storage. So it’s complicated, and I couldn’t find anything or think through anything that led me to a clear, straightforward sentence of how the incentives would play out.”
QUESTION: Is groundwater recharge currently considered a beneficial use in California?
Dave Owen: “The short answer is yes, but not always. A somewhat longer answer is yes if you are storing for the purpose of another identified beneficial use. Some states categorically treat recharge as a beneficial use. California has been really reluctant to do that because the fear is that then people would just pump water out of surface waterways and store it speculatively, perhaps in aquifers that are so far drawdown that there really isn’t much environmental benefit or other benefits to the storage. So under California law, you need to have an end use in mind. It can’t just be recharge for its own sake.”
QUESTION: Water is really one continuum; we talk about groundwater, surface water, and stormwater, but ultimately, physically speaking, it’s often quite interconnected. Given that there are many ecosystems in California and everywhere that depend on groundwater flows for their existence and health, is there any way to connect the health of groundwater-dependent ecosystems to groundwater recharge to encourage recharge or stand in the way of degrading natural recharge?
Dave Owen: “That’s what I’m trying to get at in the article and in the talk here as well. The short answer is, it’s really complicated, but either through incentives or penalties, you can create consequences for landowners who manage land or water managers who manage water systems in ways that either promote recharge or that inhibit it. A water fee is one potential way of doing that; prescriptive regulation is another. So there’s a variety of different options, but that is part of the goal here.”
QUESTION: Groundwater recharge can have many benefits, and ‘multi-benefit projects’ is currently a buzzword in California and is increasingly being at least alluded to as part of state policy for determining how to fund projects or incentivize projects. What are the implications of that from an organizational or jurisdictional perspective when we have a water continuum but a fragmented set of agencies that are responsible?
Dave Owen: “There are aquifers that stretch across institutional boundaries with multiple agencies responsible for managing either the land over the aquifer or the resources that affect or are affected by the efforts. It’s hard, especially in a state as big and complicated as California; intergovernmental coordination is our daily challenge. And it’s going to be particularly acute in this realm.”
“This goes back to the earlier question about the state’s role. Usually, when we sort out these kinds of inter-jurisdictional, multi-agency challenges, we do so partly because we’ve got creative, determined entrepreneurial people at the local level who find ways to work together. But it also can help to have some facilitation and technical support by the state. So helping navigate those jurisdictional challenges is a really important staple.”
QUESTION: Regarding the idea of connecting forest management with groundwater, what are some of the existing projects, and how have they managed to make that connection in a practical sense?
Dave Owen: “I’ll use South Africa as an example. In much of South Africa’s landscape, there aren’t native trees. So naturally, there would be no trees growing, so trees, where they exist, are because invasive species have come in and spread or because people have planted plantation forests. So in South Africa, if you plant a forest plantation, you have to get a water permit for it even if you’re not diverting water. If you’re irrigating it, you have to get a water permit because you are increasing the amount of water consumption, you are decreasing recharge. So that is one potential model.”
“Cape Town has been funding people to go out into the hills and mountains around Cape Town and pull invasive plants that consume a lot of water. This is actually funded by water fees.
“In our landscapes here, the approach would likely be somewhat different. Our forests need a combination of selective thinning and restoration of a more natural fire regime. But both of those things cost money. They’re labor-intensive. It takes a lot of money to do those things well. Now, the state of California can’t pass a law saying that the United States Forest Service is responsible for paying for the water impacts of its forest management. We have the Supremacy Clause; we don’t have that power in the state over the federal government. But it could be possible to create incentive structures. And it could be possible for the state to create some sort of regulatory regime or build into the existing regulatory regime, something that applies to private landowners and state lands.”
Moderator: “I would refer interested listeners also to Blue Forest Conservation. They may not be linking directly to groundwater recharge, but they have an actual program on forest restoration connecting to water, as well as some interesting work that Denver Water has done connecting forest restoration to water generally.”
QUESTION: What about water rights and the connection between the surface water rights regime? And what might be required for recharge? How does the disconnect between the two legal structures for managing surface water and groundwater manifest in the realities of doing managed aquifer recharge?
Dave Owen: “In some settings, it’s not really a disconnect; it’s a fairly straightforward relationship. So if you’re going to do a highly managed aquifer recharge project, and your plan is to divert water from the Kern River and pump it into a recharge basin, you need a water right to do that. It’s a traditional surface water right. And under California law, once that water is injected into the ground, it is still considered surface water and is still subject to surface water law, even though it is physically in the ground and maybe physically commingled with groundwater. So for accounting purposes, that still surface water.”
“So the question is just whether the right is available. So you would apply to State Water Resources Control Board; you might do this with water that you already have a right to. So you might be repurposing water rights that you already have. But if you’re trying to obtain a new right, typically, your argument would be there are these massive flood flows that only come along every couple of years. But when they do, there is excess water available in the system, so I should be able to appropriate that water and then put it to beneficial use by storing it where it’s going to be used for this specific future use. So that’s how it works there.”
“It gets more complicated if you’re dealing with something like overbank flooding or other practices that are more about land management and less about sucking water out through a pipe and then putting it someplace else. Also, it’s complicated with stormwater because we’re so accustomed in our water systems to think about stormwater as essentially a problem. Until fairly recently, there was some ambiguity in California about whether you would even have a right to capture stormwater if you are a municipality. So California, by statute, tried to settle that issue and say if you’re a municipality and you capture stormwater, you have water rights in what you’ve captured. But until fairly recently, that was another ambiguity.”
QUESTION: Given your research, have you identified any key legal gaps that the legislature might proactively address that could help with some of the disconnects that we’re seeing in groundwater recharge?
Dave Owen: “I think funding for basically permitting – I say streamlining, but it might not necessarily be streamlining, it might be guidance, but essentially funding to help people through the process of getting managed aquifer recharge permitted, I think would be particularly important.
“I think the legislature probably could do some [legislation], but this would not be simple. It would take some work. But I think there are some intriguing possibilities with forest management and maybe rangeland and management as well. This is one where I could ramble on and on … One hope of doing this research was to identify some really clear fixes that would be relatively easy to implement and relatively straightforward. To come out with that thesis like, ‘here’s the problem and here’s what we’ve got to do.’ I didn’t find that. It’s complicated. I didn’t find easy solutions that are just on the shelf ready to go or are easily going to be easy to implement.”
