With Skip Hyberg
Water is a crucial natural resource for human beings, both directly in terms of personal consumption but also indirectly due to its key role in agriculture and many types of commerce. A human being can normally go no more than three days without water, underscoring how important access to safe drinking water is. In the United States, about 35 percent of residents rely on groundwater (from aquifers) for their drinking water, and the remainder rely on surface water drawn from rivers and lakes.
This blog follows up on our blog published on October 3rd, and discuss how some jurisdictions within the United States (local and state) are addressing this problem and. will explore some of the policy implications of these approaches Although the groundwater data cited in that blog suggests that current withdrawal rates are a looming problem in many parts of the country, we cannot craft policy that looks at groundwater supply and demand issues in isolation, but also need to make sure that any such policy does not create perverse incentives to draw down our surface water supplies either.
In the United States, most policies that govern water use are established at the local or state level. In the eastern U.S., the dominant approach for allocating water is the riparian approach, based on English common law which allows the owner of land adjacent to the body of water the right to make ‘reasonable use’ of the water, which bars those owners from taking steps which interfere with the ‘reasonable use’ rights of other riparian owners downstream. In the western U.S., the most common approach is ‘prior appropriations’, which allocates rights to water based on which individuals were the first to make use of the water body in question. Several states have adopted hybrid systems which use elements of both the riparian and prior appropriations approaches.
For many decades, groundwater use was subject to no or only minimal regulation, the latter typically a version of the ‘reasonable use’ doctrine described above for groundwater below a landowner’s land boundaries. However, the emergence of steam power technology that allowed wells to be drilled hundreds of feet into otherwise inaccessible aquifers. In the 1890’s the use of steam power in the arid regions of the western U.S. spurred greater use of groundwater for irrigating crops. The 1890 Census of Agriculture reported 3.5 million irrigated acres, almost entirely in the west, while 30 years later, that area had risen more than 430 percent, to more than 19 million acres. As the implications of withdrawal rates greatly exceeding recharge rates has become clearer over the last few decades, some jurisdictions implemented permitting requirements and other rules aimed at extending the life of the aquifers that are at risk of depletion.
Although it has not yet become a widespread problem in the United States, there have been several reports in recent years of residents in small towns and rural areas running out of water from their own household wells. This has been a particular problem in California’s Central Valley (also known as the San Joaquin Valley), in towns such as Teviston, Visalia and East Orosi, but has also also observed in rural Texas (Bastrop County), and even in Maine. In 2021 alone, there were 467 reports of dry wells in California, and many more likely went unreported.
In Nebraska, the state government has given Natural Resource Districts (NRD’s) the authority to implement well drilling moratoriums and/or stays on expansion of irrigated acres, and implement groundwater use allocations. These entities were created in the late 1960’s to “solve flood control, soil erosion, irrigation run-off, and groundwater quantity and quality issues.” Many NRD’s now require those wishing to dig new wells to obtain permits, and those users must track and report how much water flows out of that well annually. Under state law, all NRD’s are instructed to develop ‘dry year’ plans, under which the NRD can limit the number of acres that can receive water for irrigation in the case of severe droughts. Although the NRD’s possess this authority, they have shown reluctance to exercise it over their neighbors, even in times of severe drought.
During the multi-year drought that struck California between 2011 and 2017, the state government realized that many farmers increased their reliance on groundwater for irrigation when their normal allocations of surface water were restricted by the state and federal governments. In 2014, the state legislature passed and Governor Jerry Brown signed the Sustainable Groundwater Management Act (SGMA), which required that local governments in medium and high priority water basins set up rules to develop and implement groundwater sustainability plans to avoid exhausting aquifers. The main affected areas are the Central Valley between Bakersfield and Redding, and smaller areas close to the Pacific coast that are south of San Francisco, a narrow stretch between Salinas and San Luis Obispo, much of Ventura County, and parts of Riverside county that include desert communities such as Palm Desert and Indio. However, the law gave those jurisdiction an adjustment period of six years before taking effect, and many additional wells were drilled in the designated areas before SGMA began constraining such activity, which over time will require farmers to reduce their groundwater usage significantly.
With funding from USDA’s Natural Resources Conservation Service (NRCS), a pilot program was set up in Fox Canyon (in Ventura County) to designate portions of the total groundwater capped amount to individual users and allow users to buy and sell groundwater under the total cap. The market was launched in 2020 and requires metering of water flows to verify transactions. A market allows users to assess and act on the value they place on water, which will in turn result in those users placing the highest value on it. Non-farmers are currently not allowed to participate in this market.
The state of Arizona has been endeavoring for decades to rein in unconstrained use of groundwater across the state. Arizona set up a system to manage groundwater pumping in fast-growing areas and has also invested in aquifer recharge projects, storing 3 trillion gallons of water in underground aquifers. Local communities have restricted the construction of new developments to only those that can demonstrate a sustainable water supply for the new users. This has resulted in stopping some construction. In recent years, Arizona has also engaged in efforts to encourage farmers to grow less water-intensive crops such as barley in place of alfalfa. Despite these efforts, administrative actions, such as the early October decision by the state’s governor to cancel a lease to a Saudi company withdrawing large amounts of groundwater to grow alfalfa to be shipped back to feed Saudi cattle, are still sometimes needed.
It is past time for the federal government to assume a stronger role in establishing a more holistic set of policies for conserving groundwater, similar to the recent steps it has taken to address the crisis in the Colorado River system. We cannot rely on a patchwork of local or state actions to address this problem with the urgency needed, especially since the majority of states have taken no action at all.
