Voters in Butte County this November will vote on two initiatives that may have a lasting impact on the way in which California manages its groundwater resources. Both initiatives seek to regulate groundwater use and extraction within the County while limiting (or prohibiting) the export of water from the County. One ordinance is sponsored by the Valley Protection Water Alliance (VPWA); the other is sponsored by the Butte County Farm Bureau. The initiatives are quite different, however, in two key respects: in their approach to groundwater management and in their acceptance of the A.B. 3030 process. Depending on the results of this election, other counties may move towards greater or lesser regulation of groundwater resources, regulation that, to a greater or lesser degree, reflects and accepts the A.B. 3030 process.

Background
The present groundwater initiatives are a direct result of the measures adopted by water districts and counties arising from the 1987-92 and 1994 drought. The event that is widely credited with sparking the competing groundwater ordinances — the sale of 115,000 acre-feet to the State Drought Water Bank in 1994 — might not have actually led to any action without a recent decision by the California Court of Appeal.

In Baldwin v. County of Tehama, landowners challenged a Tehama County ordinance that limited groundwater extractions and conveyance out of that county. The landowners were planning to pump groundwater from wells located in Tehama County, introduce the water into the Tehama-Colusa Canal, and then deliver an equivalent amount of water to lands that they owned in Glenn and Colusa Counties. The Court of Appeal threw out the challenge and upheld the Tehama County ordinance. The court found that the California Constitution grants the police power (i.e., the general power to act to protect the health, safety, and welfare of residents) to counties. Because regulating the use and export of groundwater falls within the general scope of the police power, the court declared that the landowners were required to show that the Legislature had intended to preempt regulation of groundwater by localities. Even after examining A.B. 3030, the court found that the Legislature had not intended to preempt county regulation of groundwater; the court, accordingly, upheld the Tehama County ordinance. Since the Baldwin decision in late 1994, a number of counties throughout California have begun the process of developing ordinances to regulate the use of groundwater. These ordinances have generally stepped gingerly around the key issue left unresolved by that decision: the relationship (if any) between a county ordinance and a groundwater management plan adopted under A.B. 3030.

The Competing Groundwater Ordinances
The first initiative circulated for signature in Butte County was sponsored by the VPWA. The ordinance begins with recitals stating that the extraction of groundwater in Butte County has caused excessive drawdown of the groundwater table. The initiative creates a Butte County Water Department, headed up by a certified hydrologist. The first task of the new Water Department will be to prepare a Water Management Plan. (The initiative is largely silent about the relationship between this water management plan and any plans adopted under A.B. 3030; the Plan must incorporate groundwater conservation standards contained in an A.B. 3030 plan but the incorporation of other provisions of an A.B. 3030 plan are not discussed). The Water Management Plan must include both “surface and groundwater . . . to the extent that they are interchangeable in terms of their use.” The Plan must also be consistent with a number of groundwater extraction standards, including:

1. “The paramount protection of Butte County’s citizens, environment, and economy”;
2. Maintaining the groundwater table at a depth that supports natural vegetation, wildlife, natural springs, and that does not cause excessive costs to groundwater users;
3. Satisfying — to the extent feasible — agricultural water needs;
4. Reducing subsidence from groundwater extraction; and
5. “Consideration of the needs and practices of all water users in the state.”

Under the initiative, all wells in Butte County producing over 50 acre-feet will be required to obtain an annual permit to extract groundwater. The permit application will require the extractor to describe the depth and extraction rate of each well, the period of use, any adverse environmental effects from the extraction, any change in the use of surface water, the beneficial use of the groundwater and the end use of the extractor, and the alternatives available to the extractor. Permits will be required to be processed in an expeditious manner and must be consistent with the county’s groundwater management plan. Permittees will also be required to report groundwater levels, groundwater extractions, and the use of groundwater pumped to the County on a monthly basis.

The competing initiative — which is sponsored by the Butte County Farm Bureau — adopts a much less regulatory approach. The initiative only requires a permit for groundwater that is exported from Butte County, save where the water is used on an adjacent parcel and the use is consistent with historical practice. The initiative also requires a permit when groundwater substitutes for surface water that is then transferred outside Butte County. Unlike the VPWA initiative, the Farm Bureau initiative does not establish a new department to process groundwater permits. Instead, that function is given to the Butte County Health Department. The information required on the application includes the amount of surface water available to the land, the source of surface water to be transferred, the surface water right, the spacing from adjacent wells, a groundwater hydrology report identifying adverse impacts on other wells, and a mitigation and monitoring program for impacts on third-party wells. Permits are to be granted if the extraction will not cause overdraft, cause or increase salt-water intrusion, cause subsidence, injure other overlying groundwater users without compensation, or exceed the safe yield of the basin or subbasins. These permits will have a three-year term.

The Farm Bureau initiative directly addresses the relationship between a county groundwater ordinance enacted under the county’s police power and a groundwater management plan adopted under A.B. 3030. The initiative states that if an applicant will be pumping from lands located within the boundaries of an entity that has adopted an A.B. 3030 plan, the Health Department must consider the plan prior to issuing a permit to extract groundwater. Nonetheless, the initiative also states that it is not its intent to limit the exercise of authority under A.B. 3030. Conclusion Comparing the two initiatives shows that their respective proponents take very different views towards the regulation of groundwater resources. The proponents of the VPWA initiative view groundwater resources through the broad lenses of the public trust and reasonable and beneficial use doctrines and have crafted a detailed regulatory scheme to ensure that no part of these resources can be put to unpermitted use. In exercising this type of broad regulatory authority, though, the VPWA initiative — almost by necessity — leaves little room for regulation under A.B. 3030. By contrast, the Farm Bureau’s initiative —while recognizing the importance of groundwater resources in an agricultural county — limits itself to the regulation of groundwater that is proposed for export or that is used to support exports of surface water. In keeping with this more limited scope for regulation, the Farm Bureau initiative states explicitly that it will not limit the regulatory authority of agencies exercising power under A.B. 3030. It will be interesting to see which view of groundwater regulation the voters of Butte County choose. It will be even more interesting to see whether the Butte County ordinance becomes a model for counties around California.

Mr. Aladjem practices with the firm of Downey, Brand, Seymour & Rohwer in Sacramento. He regularly represents public agencies, mutual water companies, farming corporations, and individual farmers in a wide variety of water-related matters.