Exploring Limits for a Precious Western Resource

Groundwater is a critical resource in the western 17 states. Groundwater provides drinking water to nearly 10 million people through self-supply wells, supports public-supply water systems, and plays a vital role for food production and industries, especially during drought when surface waters are less available. Ensuring adequate groundwater supplies are available to meet growing water demands of the West is important and suggests that groundwater management must transcend the status quo.

Here, we provide a state-of-the-art toolbox for understanding a sample of groundwater permitting approaches across the Southwest (one per state, selected to best inform California’s new Sustainable Groundwater Management Act). Groundwater withdrawal permitting applies to much of the West, and it has become an increasingly common tool for sustainable groundwater management at local, regional, and state levels. The precise legal terminology of groundwater permitting varies by state, but the concept used is similar: requiring a would-be pumper to gain permission before withdrawing groundwater. Sometimes even after permitting, there is a need to deal with water depletion or scarcity, for example by curtailing rights, but we do not address this ‘post-permitting scarcity management’ in this Dashboard; the Dashboard focuses only on permitting.

Intended audience

The Dashboard was created for agencies, water managers, and citizens interested in understanding groundwater withdrawal permitting. The Dashboard can provide baseline information for those considering introducing a permitting regime and those who want to find jurisdictions that face similar legal challenges. The Dashboard shows that there is a generalizable trend towards increased statutory management of groundwater; it is a starting point for learning from this living laboratory of diverse statutory approach.

Our toolbox includes one legal approach considered in each of the southwestern states. Even if a map does not show a special permitting area over a given part of a state, one might still need to gain permission to pump groundwater. Highlighting special permitting areas helps us understand an important aspect of how a state has chosen to regulate groundwater differently in certain areas, compared to its ‘default’ regulatory arrangements.


In this Report

Read Insights: The West

There is a spectrum of legal interventions used to manage groundwater withdrawals in each of the southwestern states. Permitting powers can be managed at different levels of government, requiring a review of a wide-range of criteria or requiring metering, monitoring, and reporting standards — what are the regional trends

Compare and Contrast States

The significant diversity of groundwater withdrawal permitting in the southwest provides a laboratory of regulatory arrangements, the examination of which provides opportunity to identify tools for sustainable groundwater management in your community or state — how does your state compare to its neighbors?

Read and Learn: Your State

All southwestern states have introduced the concept of groundwater withdrawal permitting into their state laws. Some states were early adopters of groundwater withdrawal permitting, while other states have only incorporated a widely applicable power recently — which state do you live in?

How Does Groundwater Withdrawal Permitting Work?

Benefits of Groundwater Withdrawal Permitting

  • Withdrawal permitting can reflect local, regional, or state priorities and preferences. Withdrawal permitting can take legal form in state statutes or in ordinances by local agencies that are granted permitting powers by the state. There are examples of local, state, and hybrid approaches to management. Because permitting regimes are developed through legislation and regulation, the principles reflect the preferences of elected representatives and can be amended if public perspectives change.
  • Permitting regimes can consider equity, efficiency, or socially preferred water uses. Permits to withdraw groundwater are conditioned on a variety of factors, including the amount of water pumped and the the use of the water. Most areas exempt certain types of withdrawals (i.e., domestic or stock watering) from permitting requirements
  • Withdrawal permitting can broaden the concept of sustainability beyond “safe yield”. Historically the law limited total groundwater extraction to “safe yield,” but permits allow for the consideration of a range of issues affected by groundwater pumping, including impacts on other water users, environmental effects, future water needs, and the public interest.
  • Permitting regimes and “good” science go hand-in-hand. Informational tools like metering and monitoring are often mandated by permits criteria to collect data about groundwater levels and use.
  • Permitting regimes provide the foundation for water markets. Groundwater permits often specify a precise amount of water allocated to each user and require monitoring of actual pumping levels. These two factors can form the basis for trading of groundwater rights or allocations.

Keep in Mind

  • One type of demand-side management is regulation, which provides discretionary or mandatory powers to water managers to control groundwater use. One type of regulation is groundwater withdrawal permitting, which is established by state legislatures through legislation and by agencies at different levels of government through regulations and ordinances. Traditionally, a right to withdraw groundwater was established by simply withdrawing the water and using it, under rules established by courts. Permitting regimes can restrict the exercise of water rights or replace rights.
  • Although groundwater law concepts can be similar across the West, there is local variability of the law. Just as hydrogeology can vary significantly across regions, so can permitting regimes and the common law. Here, we we investigate the law in general terms, acknowledging but not discussing the state differences in detail.
  • Groundwater withdrawal permitting is different than, and complements, a system for authorizing the construction of groundwater wells. Here we focus only on groundwater withdrawal permits, except in special situations, where we state otherwise. Sometimes a permit to construct a groundwater well is not met with a requirement for a permit to withdrawal groundwater. Other times, both permits are required: water cannot be extracted legally without an approved withdrawal permit.

Approach

  • We define groundwater withdrawal permitting areas as geographically defined subareas of a state, which are designated due to concerns about the effects of intentional groundwater withdrawals (rather than, e.g., leaking due to a lack of maintenance), and in which a “special” groundwater quantity management regime applies that is different from the regime that otherwise applies by default elsewhere in the state (e.g., permitting or other management techniques, but excluding adjudication).
  • We focus our toolbox on specific characteristics of groundwater withdrawal permitting regimes: balance between state and local administration; criteria for issuing groundwater permits; the ways in which water rights are expressed in groundwater permits; metering in relation to groundwater withdrawals; and penalties for violating the terms of a permit.
  • Here we focus only on groundwater withdrawal permits, except in special situations, where we state otherwise.

Source Research for this Report

The Dashboard represents a living laboratory with elements that change; currently it represents the findings in the below reports.
 

 

The Role of Permitting Regimes in Western United States Groundwater Management

Rebecca L. Nelson and Debra Perrone

Groundwater
Volume 54, Issue 6
November/December 2016
Pages 761-764

© National Ground Water Association

Authors

Debra Perrone

Assistant Professor
Environmental Studies
University of California, Santa Barbara
 Email 

Debra Perrone is an Assistant Professor of UCSB’s Environmental Studies Program and a non-resident fellow of Stanford’s Water in the West Program. Prior to joining the faculty at the University of California, Debra was a postdoctoral research scholar at Stanford University with a dual appointment in the Department of Civil and Environmental Engineering and the Woods Institute for the Environment. She received her PhD in Environmental Engineering at Vanderbilt University in 2014 and was awarded first honors as the Graduate School’s Founder’s Medalist. Debra has been awarded fellowships from the Environmental Protection Agency and National Science Foundation for her work studying the growing water scarcity challenges and tradeoffs facing society.

She integrates research methods from engineering, physical science, policy science, and law to inform water sustainability and public policy; she uses a wide-spectrum of outlets to disseminate her research, including peer-reviewed journals, policy briefs, and interactive-online dashboards. Debra is co-authoring a textbook for undergraduate students that focuses on the challenges and opportunities surrounding our global water resources by providing a foundation in water science and policy (Hornberger and Perrone, Under Contract).

Rebecca Nelson

Senior Lecturer
Melbourne Law School
University of Melbourne
 Email 

Dr. Rebecca Nelson is a Senior Lecturer, Melbourne Law School, University of Melbourne, and a non-resident fellow of Stanford’s Water in the West Program. Dr Nelson’s main areas of research lie in natural resources law in a domestic and comparative context (Australia, United States, China, European Union). A particular research interest is the interaction between water law and environmental law and designing legal structures to deal with complex, dynamic, interconnected and uncertain natural systems. Dr Nelson teaches public law, legal research, water law, and advanced environmental law. From 2010-2014, Dr Nelson led the Comparative Groundwater Law and Policy Program, a joint initiative between the United States Studies Centre at the University of Sydney and Water in the West at Stanford University.

She formerly worked as a lawyer at the Murray-Darling Basin Authority and at an international law firm. Dr Nelson was the International Association of Hydrogeologists (Australia) Distinguished Lecturer (2016) and the Law Council of Australia’s Mahla Pearlman Young Environmental Lawyer of the Year (2013-14). She has received the Farvolden Award from the National Ground Water Association (USA) and a General Sir John Monash Award (Australia). Dr Nelson is also a Director of Bush Heritage Australia. She holds a Doctor of the Science of Law from Stanford University and a Master of the Science of Law (Stanford) and BE(Environmental)/LLB (University of Melbourne).

Geoff McGhee

Bill Lane Center for the American West
Stanford University

www.geoffmcghee.com
 Email 

The former Creative Director for Media and Communications at the Bill Lane Center for the American West, Geoff is a frequent contributor to Water in the West. His work includes the 2014 multimedia series “Understanding California’s Groundwater,” which sought to cast a spotlight on the state’s vital resource in a time of prolonged drought and leglisation that became the state’s landmark regulation, the Sustainable Groundwater Management Act.

Geoff works on other projects that track water and resource issues in the American West. He is the associate editor of the Bill Lane Center’s ‘...& the West’ blog.

Previously, Geoff worked as the multimedia editor at Le Monde Interactif in Paris from 2008-2009 and at The New York Times from 2000 to 2008 as Graphics Editor, Enterprise Editor, Chief Multimedia Producer and Video Journalist. He also worked at ABCNews.com from 1999-2000. He was the lead writer on National Geographic’s “Data Points” column on information visualization in 2015-16. Geoff received his master's degree in journalism from Columbia University.


Additional Credits

Leon Szeptycki

Executive Director, Water in the West

Kate Lamy

Illustrations

Acknowledgements

This research was supported by a gift from Mr. Cody Smith to Water in the West at Stanford University and a grant from the S.D. Bechtel Jr. Foundation to Water in the West.

 

Water in the West, a joint program of the Stanford Woods Institute for the Environment and the Bill Lane Center for the American West, marshals the resources of one of the world’s preeminent research universities to answer one of the most urgent questions about the American West’s future—how can the region continue to thrive despite growing water scarcity? Through Water in the West, Stanford University’s world-class faculty, researchers and students are working to address the West’s growing water crisis and to create new solutions that move the region toward a more sustainable water future.