Groundwater wells versus surface water and ecosystems [electronic resource] : an empirical approach to law and policy challenges and solutions
Keywords: Law JSD.

Groundwater supplies cities and industries, feeds rivers and lakes, and supports an astounding array of biodiversity and land features, from desert oases to geysers. Despite its importance, groundwater allocation laws tend to be relative newcomers to water law frameworks globally. As frequently noted in the water management and legal literatures, water laws often lack legal tools to deal with competition between groundwater users, on the one hand, and human and ecological users of hydrologically "connected resources"—surface water right holders and advocates for groundwater-dependent ecosystems ("GDEs") —on the other hand, which groundwater pumping may affect. If law does not make these links, it may inadvertently reduce the reliability of surface water rights and allow pumping to damage or destroy GDEs. Three stand-alone, but interconnected, empirically focused studies deal with law and policy tools for linking groundwater pumping and its potential impacts on connected surface water rights and GDEs ("linking tools"). They span the laws and policies of 25 state jurisdictions across the western U.S. and Australia, which manifest key differences, as well as important similarities. The first, Framework Study, builds a typology of linking tools, and analyzes the issues that arise in implementing them from two perspectives: administering agency practitioners, and policy design theory. The second, Offsets Study, evaluates a promising and under-studied linking tool: offset rules. These lift prohibitions on pumping stream-connected groundwater provided the pumper neutralizes adverse impacts on surface water rights before they manifest. The third, Conflicts Study, examines for the first time how California deals with conflicts over groundwater pumping and connected resources without a specific law and policy regime to manage them. The studies are based on an extensive law and policy review; 40 hours of interviews with state agencies; quantitative analysis of a large state water rights database; and the construction and analysis of a database of conflicts using content analysis, descriptive statistics and geographic information systems. A broad range of linking tools exists on paper and in practice. Tools either prevent predicted adverse impacts on surface water rights and GDEs at the groundwater permitting stage, or remedy existing impacts. They set thresholds of acceptable impact using either regulatory (achieved through government regulation) or voluntary (generally achieved directly or indirectly through government payments) methods. Markets offer flexibility in meeting thresholds generally by enabling users to buy rights rather than restrict their own pumping. In practice, state-based, direct regulatory linking tools dominate. In the western U.S., these often adopt very low preventive thresholds of acceptable risk to surface water rights, but include few tailored protections for GDEs. Along each dimension, the opposite generally applies in Australian states, likely due to different legal and cultural preferences for water shortage-sharing, notions of property rights, and preferences for maintaining status quo conditions associated with both. States in both nations generally lack many theoretical linking tools, including groundwater rights equivalent to instream flows, self-regulatory and co-regulatory strategies, and economic tools that set acceptable thresholds of harm, such as taxes. These gaps appear starkly compared to their significant development in environmental policy tools. Significant reform opportunities are identified through the framework typology, analysis based on practical implementation issues (which often relate to the burden of obtaining groundwater information), and policy design analysis that uncovers varying discretion, administrative burden, cost and equity inherent in different tools. Opportunities include developing missing tools, and strengthening weaknesses, inspired by outstanding state approaches to implementation issues—particularly those which redress gaps in protection for GDEs and address cost concerns in implementation, especially relating to information burdens. One promising tool, groundwater offset rules, could be extended beyond its geographical limits in eight western U.S. states, and beyond its conceptual focus on protecting surface water rights (but not yet GDEs) from the impacts of groundwater pumping. Effective groundwater offset rules deal with two key threats to the equivalence of stream depletion impacts (I) and offsets (O): (1) mis-quantification of I or O, and (2) non-fungibility between I and O in relation to space (where each has effect), type (the "units" of each), or time (when each has effect). Relative to offset rules in the environmental sphere, western U.S. states often adopt groundwater offset measures that require extensive, case-specific technical and administrative work (as tends to occur for linking tools there generally), and public review, with high potential costs for agencies and pumpers. Theory suggests such measures should encourage thin markets and little practical use of the rules, particularly where the groundwater is of relatively low value. However, a case study of Idaho's offset rules shows that they are widely used and that certain requirements, for example, public review, appear to be less burdensome than the environmental offset literature fears. On the other hand, Idaho's active water markets are little used to combat potential cost issues associated with finding offsets to purchase. Western U.S. groundwater offset rules tend to lack several features of environmental offset rules, notably mitigation sequencing, high offset ratios, and out-of-kind offsets, though they are emerging slowly. Such features could help reduce risks of non-equivalence and deal with challenges noted by administering water agencies, particularly those relating to cost. The five-year database of 55 Californian conflicts about the impacts of pumping groundwater on connected resources demonstrates the danger of relying on incidental regulation of such impacts through a pre-existing patchwork of generic laws, rather than tailored linking tools. These conflicts occur widely across California, both in terms of geography and the water use sectors and ecosystems involved. Conflicts appear outside the geographical focus of current groundwater management efforts, which are largely blind to them, and practical problems confound the application of existing (generally environmental) laws to these conflicts, in even those situations where they clearly apply. Yet these weaknesses have inspired both the creative use of existing laws, and the notable involvement of non-traditional participants in groundwater management, prominent among which is the federal government. Tailored linking tools are highly desirable to consider the impacts of pumping groundwater on connected resources. Many tools are available. They could be modified, and others created, to suit different contexts, fill existing gaps, and deal with weaknesses and implementation problems. Offsets deserve particular exploration. The broad-ranging lessons of this project could inform not just groundwater policy development within and beyond the subject regions, but also the design and implementation of tools in the context of an equally complex, larger, often data-poor natural world that is so often subject to fragmented administrative and regulatory systems.