Title: Centralized versus Decentralized Approaches to Groundwater Management in the Western United States: How Hydrogeologic and Political Forces Shape Management
Randolph B. Flay[1]
& T. N. Narasimhan[2]
ABSTRACT
In the arid states of
Arizona, California, Nebraska, and Texas, groundwater has supported much of the
economic success of agriculture, industry, and mining since the late 1800s, and
continues to do so. Early legal mechanisms
to manage groundwater were largely limited to the consideration of “fair”
apportionment based on common law legal traditions. However, these mechanisms, focused on small-scale disputes solved
by judicial procedures, were soon overcome by the scale and complexity of
groundwater systems. With the advent of
high capacity turbine pumps in the early 1910s, overdrafting of basins occurred
at an alarming rate, resulting in land subsidence, impacts to surface water
rights, salt imbalance (less salt transported out-of-basin and increased evaporative
concentration in-basin). Since that
time, Arizona, California, Nebraska, and Texas have taken various approaches to
reduce water rights conflicts and protect environmental values. The approaches differ significantly in the
degree of centralization, the integration of surface water and groundwater, and
the organization of localized groundwater management districts. These differences have been the result of
various environmental conditions, interpretations of common law legal doctrines
in each state, political interests, and legislative or state governmental
assertiveness. This paper examines
these shaping factors and the systems of groundwater management that have
resulted in each of the four states.
In particular, attention is focused on the following questions:
·
How do groundwater
management institutions differ in Arizona, California, Nebraska, and Texas, in
particular with regard to the degree of centralized control?
·
Under what
conditions has centralized/decentralized control worked better?
This study utilizes a
modified Institutional Analysis and Development framework to help understand:
(1) fundamental institutional structures such groundwater legislation, water
districts and state administrative units, the court system, and community
interaction; (2) the impact of heterogeneity and finiteness, and uncertainties
of annual recharge in the groundwater resource and water users on optimal
resource distribution, vis-ŕ-vis externalities; (3) hierarchy in the
transmission of regional priorities to local districts for implementation; and
(4) the interaction of these components and the resulting level of
centralization in each state.
The following
indicators are used:
·
Hydrogeology: physical and chemical attributes of groundwater basins, the
interrelation of surface water and groundwater, the interaction of various
groundwater components, and geochemical among groundwater, surface water bodies
and the soil resulting from groundwater development. Systems of water management that do not take into account the
effect of groundwater development on surface water rights, the cumulative
effects of salt imbalance on groundwater salinity, and the effect overdrafting
on supply security in the decision-making process do not efficiently use water
in an economic sense. These
externalities/heterogeneities require higher scale planning and goal setting
and mechanisms to compel parties to implement a solution that maximizes benefit
at larger spatial and temporal scales.
·
Legal System: common law fundamentals, rules regarding ownership and dispute resolution,
surface water/groundwater rights, and in-stream protections (e.g. Public
Trust).
·
Management Structure
o
Water Districts: structure of the local water management entity, extent of authority
and jurisdiction, and spatial extent.
o Regional
Units: state level structures,
regional planning, strategic planning, goal setting, and decision-making
mechanisms (aggregation).
o
Hierarchy: transmission of regional priorities to local entities, mechanisms for
enforcement, regulatory or voluntary, conflicting boundaries (water district,
county district, watershed).
These indicators are
examined in each state. Their
characteristics and the interactions among them help understand how groundwater
is being managed and where inefficiencies exist.
Arizona:
·
In Arizona, the
Basin and Range aquifers and the Rio Grande aquifer system generally consist of
unconsolidated gravel, sand, silt, and clay, or partly consolidated sedimentary
or volcanic materials. These materials have filled deep fault-block valleys
formed by large vertical displacement across faults. When mountains encircle a valley, the aquifer in the valley is
often isolated, enclosing groundwater. However, many valleys are
interconnected.
·
The legal system
with respect to groundwater is similar to California, recognizing groundwater
tributary to streams (governed by the rule of prior appropriation) and
percolating groundwater (governed by the rule of reasonable use).
·
As early as 1948 the
state froze agricultural expansion having recognized the significant over
exploitation of aquifers. However, the
Arizona Supreme Court in 1953 determined that groundwater was not public property
(under existing state statutes and common law interpretation), limiting state
intervention.
·
Only in 1980 did the
state legislature muster the political will to pass the Arizona Groundwater
Management Act, under a threat from the federal government to lose financial
backing for the Central Arizona Project to convey surface water.
·
The Act created
Active Management Areas (AMAs) and Irrigation Non-expansion Areas (INAs) as
legal subdivisions of the state. Within
these zones, the state mandates water use control measures on a continuously
more restrictive course in an effort to bring the AMAs into safe-yield by
2025.
·
In AMAs all sources
of water, surface and underground, are included in management plans. AMA Boards of Directors have numerous tools
to meet the water consumption goals, including legal right provisions,
underground storage, conservation, and education programs.
California:
·
California is
dominated by the Central Valley aquifer system which occupies most of a large
intermontane basin in central California between the Sierra Nevada and the
Coast Range Mountains. The Central Valley is the single most important source
of agricultural products in the United States, and ground water for irrigation
has been essential in the development of that industry. Although the valley is
filled with tens of thousands of feet of unconsolidated sediments, most of the
fresh ground water is restricted to depths of less than 2,000 feet. Groundwater
in the valley is under unconfined to confined conditions, primarily depending
on depth; most of the shallow ground water is unconfined.
·
California
recognizes two distinct classes of groundwater, that which is tributary to a
stream and governed by the law of prior appropriation under Water Code Section
1200 and subject to permitting, and percolating groundwater governed by rules
of prior appropriation and overlying rights but subject only to the
jurisdiction of courts to adjudicate rights.
·
Despite the efforts
of state commissions in 1961 and 1978 that recommended to the legislature
specific modifications to California groundwater law, no significant
administration of groundwater exists.
Through Assembly Bill 3030 (1992), areas of the state can elect to
author a groundwater management plan, but any individual party can opt out
without hindrance. The courts maintain
an exceptionally large jurisdiction in the adjudication of groundwater rights,
but the lack of any statutory guidance makes enforcing one’s groundwater right
or curtailing another’s a very costly process that takes years to resolve.
·
California does not
require local water districts (with authority over aspects of surface water
distribution) to submit plans regarding groundwater to higher planning
entities. There is no basin scale
groundwater planning in California.
Nebraska:
·
In Nebraska, the
High Plains aquifer, which is near the land surface in most of Nebraska, mostly
consists of unconsolidated to consolidated sand and gravel of Quaternary and
Tertiary ages. Dune sand that covers an
area of about 20,000 square miles in Nebraska is part of the High Plains
aquifer where the sand is saturated. Where the stream-valley aquifers overlie
the High Plains aquifer, they are connected hydraulically to the aquifer and
are considered to be part of it.
·
Nebraska recognizes
both overlying and prior appropriation rights to groundwater that are
reasonable and beneficial. As early as
1957, the state required the registration of irrigation wells, well spacing,
and established a system of preferential uses.
In 1963 the state legislature passed a law requiring a permit for wells
within 50 feet of a surface watercourse, in effect recognizing a separate class
of groundwater.
·
In 1975, Nebraska recognized the problem of
ad hoc approaches to groundwater and consolidated groundwater management
authority under Natural Resource Districts (NRDs) based on hydrologic
boundaries. NRDs were given broad
authority under a Board of Directors to limit extraction and irrigated areas,
and to adopt controls to limit nitrate contamination.
·
In 1997, the Nebraska
legislature gave authority to the NRDs to manage interrelated surface water and
groundwater.
·
The authority which
an NRD (or the state Department of Natural Resources if an NRD fails to act)
has to regulate ground water use is as follows: (1) it may determine the
permissible total withdrawal of ground water for each day, month, or year and
allocate such withdrawals among the ground water users; (2) it may adopt a
system of rotation for use of ground water; (3) it may adopt well-spacing
requirements; (4) it may require the installation of well meters; (5) it may
adopt a system which requires reduction of irrigated acres; (6) it may require
the use of best management practices; (7) it may require the analysis of water
or deep soils for fertilizer and chemical content; (8) it may provide certain
educational requirements; (9) it may require water quality monitoring and
reporting; and (10) other necessary rules.
·
The major instrument
of groundwater planning is the Ground Water Management Plan (covered in §§
46-670.011 to 46-673.03). NRDs are
required to submit their plans to the DNR for approval. NRD plan contents include: (1) Ground water supplies within the
district including transmissivity, saturated thickness maps, and other ground
water reservoir information; (2) Local recharge characteristics and rates from
any sources; (3) Average annual precipitation and the variations within the
district; (4) Crop water needs within the district; (5) Current ground water
data-collection programs; (6) Past, present, and potential ground water use
within the district; (7) Ground water quality concerns within the district; (8)
Proposed water conservation and supply augmentation programs for the district;
(9) The availability of supplemental water supplies, including the opportunity
for ground water recharge; (10) The opportunity to integrate and coordinate the
use of water from different sources of supply; (11) Ground water management
objectives, including a proposed ground water reservoir life goal for the
district. For management plans adopted
or revised after July 19, 1996, the ground water management objectives may
include any proposed integrated management objectives for hydrologically
connected ground water and surface water supplies; (12) Existing sub-irrigation
uses within the district; (13) The relative economic value of different uses of
ground water proposed or existing within the district; and (14) The geographic
and stratigraphic boundaries of any proposed management area.
Texas:
·
The High Plains
aquifer of Texas is in the Great Plains Physiographic Province. The aquifer is
in west-central and northwestern Texas and consists of unconsolidated clay,
silt, and sand. The aquifer provides large amounts of irrigation water and is
the most intensively pumped aquifer in Texas.
The Edwards-Trinity aquifer system is in rocks of Cretaceous age that
are in a wide band that extends across central Texas. In the western part, the
Edwards-Trinity aquifer consists mostly of sandstone, sand, dolomite, and clay.
In the south, at the contact of the Great Plains and the Coastal Plain
Physiographic Provinces, the Edwards aquifer consists of limestone, dolomite,
and marl. The Trinity aquifer extends from the southeastern corner of Oklahoma
southwestward into Uvalde County in southern Texas.
·
H.B. 2 in 1985
changed underground water reservoirs to management areas, further requiring
that groundwater districts be coterminous with management areas. The Texas Water Commission was allowed to
consider the use of political boundaries to delineate management areas. A process to determine groundwater areas
experiencing critical overdraft was also instituted.
·
In 1989, S.B. 1212
created the requirement for the Texas Water Commission (TWC) to designate water
management areas through an agency rulemaking process. This bill also improved the delineation of
responsibility among agencies, instituted timelines and procedures for performing
critical area studies, and required groundwater districts to develop
comprehensive management plans. In
1991, H.B. 1744 allowed local landowners in designated critical areas to
establish underground water conservation districts.
Arizona, California,
Nebraska, and Texas are part of the American West, and have followed different
historical paths in water resources development. Yet, they are all part of an arid region and are dependent on a
natural resources infrastructure in which groundwater and surface water are
intimately interconnected. In turn,
these bodies influence natural distribution of soils, the plants, and the
ecosystems. Consequently, the evolving
water management strategies of these states are united by certain common
features.
The basic social value
that governs water development in all these states is that water, vital to the
existence all life, is owned by the people of the state. Water shall be used only for beneficial
purposes and wasteful use is not permitted.
To this extent, the state owns all the water and holds authority to
assure that water is used beneficially, without waste. This basic value is supplemented by modern
scientific understanding that all waters (above the surface and below the
surface) are interconnected and therefore that surface water and groundwater
have to be managed together, giving due consideration to (a) the vagaries of
climatic change, (b) the needs of ecosystems, and (c) the availability of the
resource infrastructure for future generations.
Although the realities of
a finite Earth subject to the vagaries of climate are nudging these states
towards adaptive living rather than aspiring for economic growth that cannot be
sustained, the move towards adaptive, sustainable management is slow and much
ground remains to be covered.
In the western U.S.,
centralization in groundwater management is a function of common law roots,
economic and environmental heterogeneity, and political will. Successful systems allow for local control
via water districts based on hydrologic boundaries, regional planning and goal setting,
and participatory decision-making.
[1] Ph.D. Student, University of California at Berkeley.
Fascell Fellow, U.S. Embassy, Vilnius, Lithuania.
Mailing Address: Akmenų 6, 2600 Vilnius, Lithuania.
E-mail: FLAYRB@STATE.GOV
[2] Professor, Environmental Science, Policy, and Management, University of California at Berkeley.
Mailing Address: 151 Hilgard Hall #3110, Berkley, CA, 94720-3110, United States.
E-mail: TNNARASIMHAN@LBL.GOV