Tito Sasaki Addresses Law Students on Groundwater Issues

Written By: Tito Sasaki, President, Farm Bureau Foundation
Published: February 1, 2018

At UC Berkeley on January 20, Sonoma County Farm Bureau board member and president of the Farm Bureau Foundation, Tito Sasaki, gave talks on Sonoma County’s groundwater issues to some 200 students and faculty members of law schools in the San Francisco Bay-Sacramento area. “Agricultural vs. urban demands” and “groundwater pumping effects on stream flows and fishery” were the topics for his panel at this 2018 California Water Law Symposium organized by UC Berkeley School of Law. Following are the synopses of his talks.

COMPETING AGRICULTURAL AND URBAN WATER USES
The Sustainable Groundwater Management Act of 2014 (SGMA) was a political reaction to the groundwater crises that arose as an immediate consequence of a prolonged drought, mainly in the Central Valley. The reasons behind the crisis, besides the drought, were the inadequate investment in surface water storage and conveyance infrastructure and the tangled policies on water allocation. As the availability of irrigation water became more problematic, the agricultural sector had to depend more and more on groundwater.

Between 1970 and 2009, the California population nearly doubled, agricultural production more than doubled, and the state GDP grew 16 times. But, out of the 37 largest reservoirs in the state (with a total volume of 33.4 MAF), only 8 reservoirs (7.5 MAF), representing a paltry 29% increase in the capacity, were opened since 1970, and only 2 of them after 1980. Water infrastructure investment in recent decades has clearly been falling far behind what we could have and should have made.

In California, water is allocated to three major uses: environmental, agricultural, and urban. In normal times, environmental programs receive some 50%, agriculture 40%, and urban 10% of the share. To meet the needs of the growing population, the agricultural sector has been increasing its output while holding down the input. Between 2010 and 2014, the inflation-adjusted farm GDP grew 43% from $41-billion to $59-billion while the farm acreage stayed virtually unchanged at 25.5-million acres. Irrigation water usage hovered around 30-million AF with a decreasing trend.

Some scholars believe that another 20% water efficiency improvement is possible. New technologies and farmers’ willingness to incorporate them to their BMPs do give us hope. But the bottom line is that agriculture needs water in order to survive and serve the increasing population. Farmers can get irrigation water only from allotments of surface water or pumping their wells. Groundwater is the last recourse when the surface water supply fails.

In and around Sonoma County where there is no irrigation district or Federal or State water project, farmers have to depend more on private wells. Many municipalities and urban water districts have their own wells (for being better positioned in dealing with the water wholesaler), but they don’t necessarily have to use them. Unlike urban water users, agriculture cannot get the public supply water through distribution pipelines. Such infrastructure will be considered urban growth-inducing by the Local Agency Formation Commission (LAFCO) and won’t be permitted. Thus, for the sake of orderly land use development, agriculture is made dependent on groundwater.

Napa County acknowledges the above fact, and sets a priority scheme in their General Plan as a Conservation Policy, to wit:
Recognizing that groundwater best supports agricultural and rural uses, the County discourages urbanization requiring net increases in groundwater use and discourages incorporated jurisdictions from using groundwater except in emergencies or as part of conjunctive-use programs that do not cause or exacerbate conditions of overdraft or otherwise adversely affect the County’s groundwater resources. (Policy CON-51).

As long as we foresee potential conflicts among the groundwater end users, it would be advisable to set a similar public policy prioritizing the use on a rational basis. Otherwise, the priority in the GSP could be set by a majority vote of the GSA. In Sonoma County, urban water interests dominate all three GSA governing boards. These GSAs were created by JPAs among the GSA-eligible public agencies. All cities are GSA-eligible but private organizations aren’t. As a result, there is only one genuine agricultural body serving on two of the three GSA governing boards, and no agency on any of the three that represents specifically the rural residential interest.

Under normal climatic conditions, however, conflicts can be and should be avoided by increased investments in water infrastructure, coherent policies on water allocation, and friendly competition among environmental, agricultural, and urban sectors for further improvement of the water use efficiency.

 

GROUNDWATER PUMPING EFFECTS ON SURFACE FLOWS/FISHERIES
The reason that a river keeps running many days after the last rain is that the stream is now fed by groundwater. The reason that the temperature of such a stream is cool is because it bears the groundwater temperature. And the reason that some reaches of a stream lose their flows is that the water seeps into aquifers in some places at certain times. That much we know, but little else.

SGMA mandates that a Groundwater Sustainability Plan (GSP) address the groundwater-surface water interaction. There has been much advance in recent years in the art of hydrologic modeling and water budget estimation. A recent study of the groundwater-critical northeast Napa area found that doubling of the baseline (normal) pumping would make only about 5% difference in the groundwater input to the stream. Far more important determinants are climate-driven effects including recharge and subsurface lateral flows.

By the time Sonoma County’s GSPs are ready in 2022, we will have a good grasp of our local pumping effects on surface flows and fisheries therein. However, even at that time, the reliability of the information would be less than certainty. Any attempt to regulate private groundwater pumping for the purpose of protecting surface flow-related public trust assets would trigger heated debates on nexus, proportionality, and just compensation.

For the time being, we may better direct our resources for preventing the conflicts rather than trying to resolve them with available legal tools. During the peak drought of 2015 when a Russian River tributary was drying up and threatening fish rearing habitat, some stored irrigation water was released voluntarily to give fish a respite. Similar actions should be encouraged to cope with other emergency situations. A more stable and longer-term solution would be enhanced aquifer recharge. If the aquifers that contribute to stream flows are kept adequately replenished, everybody should be happy – farmers, rural residents, and fish. To do it properly without adverse impact, however, will require new infrastructure. So, here again, we come back to the need for infrastructure investment.

The above argument may sound like avoiding the task of helping law students prepare for future legal issues, and it is. Historians, jurists, and most of us are better in hindsight than in foresight. Their task is to clarify the line of logic in the past and project it correctly to the future. Where there is little relevant past, a novice can be as potent as a veteran. So, it would be everyone’s task to ponder on what sort of legal activities may best contribute to resolution or prevention of the possible conflicts.

The California Water Plan, updated in 2014 by the State Department of Water Resources, characterizes the present days as the Bond Period, succeeding the Environmental/Public Trust Period that peaked in the late last century. Acknowledging the need for water infrastructure investments, Californians passed a series of bond measures since 2000, culminating in the Prop. 1, $7.12-billion general obligation (GO) bond measure of 2014. This year two more bond measures totaling $13-billion are headed for the ballot. Although the renewed enthusiasm in water infrastructure is a welcoming sign, GO bonds are inflexible as to the fund availability timing and costly in debt service. Taken together, GO bonds are now costing every household around $800 per year in debt service, even though only about a quarter of it is water-related. Continued reliance on GO bonds won’t be sustainable.

As we are succeeding in uniting ourselves for greater investment in water infrastructure, we must now figure out how best to finance it. There will be many legal issues in public and private financing. We may need a new breed of lawyers who could analyze these issues in fresh and imaginative ways while aiming at optimizing the total water resources management.

Permission for use is granted, however, credit must be made to the author and Sonoma County Farm Bureau when reprinting this item.

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