Review of the Laws Establishing the SWRCB's Permitting Authority Over Appropriations of Groundwater Classified as Subterranean Streams and the SWRCB’s Implementation of Those Laws. (2002)

When the term "subterranean stream" is used in this Report, it will generally be shorthand for the statutory phrase in Water Code 1200: "subterranean streams flowing through known and definite channels." 2 The term jurisdiction, or permitting jurisdiction, used throughout the Report requires a cautionary note.Water Code 1200 defines the scope of Board authority for those provisions in Part II of the Water Code that require Board approval of diversions from a stream, lake, or other body of water.Insofar as there is controversy involving the Board's authority to impose conditions on groundwater in connection with other activities within its authority (e.g., approvals under Water Code 1211 where percolating groundwater was a source of some of the treated waste water), nothing in this Report is intended to suggest a position on such matters.3 There are other important distinctions, but they are not within the scope of this Report, e.g., riparian uses require no permit (Water Code 1201), and percolating groundwater is not subject to statutory adjudications (Water Code 2500). 1 4 The term "underflow", though commonly used -and thus necessarily employed repeatedly in this Report -is an unfortunate usage, for several reasons.First, and foremost, it is not a technical term of art used by hydrogeologists.They understand groundwater and surface water to be part of a continuum (at times interrupted), and there is no hydrological line of demarcation between groundwater that is, for example, percolating toward a stream, and groundwater that has become part of the stream as "underflow".As the Arizona Department of Water Resources has explained, "[i]n the ideal, subflow [or underflow] can be visualized as just another part of the stream that lies out of view below the surface.As part of the stream, it also has distinct bed and banks which define its extent.This ideal concept of subflow does exist in narrow bedrock canyon streams where both the surface and subsurface components of the stream are contained within hardrock boundaries.But as these bedrock canyons descend from the mountains, the valleys become alluvial valleys between mountain ranges, where the subterranean component of streams becomes unbounded."Technical Assessment of the Arizona Supreme Court Interlocutory Appeal Issue No. 2 Opinion, In Re The General Adjudication of the Gila River System and Source, Arizona Department of Water Resources (December 15, 1993) (typescript), at 38.In addition, as noted hereafter in the text, the term has been commonly picked up from a headnote in Los Angeles v. Pomeroy, 124 Cal.597, 57 P. 585 (1899), writ of error dis.sub nom.Hooker v. Los Angeles, 188 U.S. 314, 23 S.Ct.395, 47 L.Ed. 487 (1903) and is often cited in a way that gives an inaccurate sense both of the trial judge's instructions, and the Supreme Court's decision, in that case.As a legal term, underflow has been defined in various ways.It is said to be water in the soil, sand and gravel immediately below the bed of the open stream (Verdugo Canon Water Co. v. Verdugo, 152 Cal.655, 663, 93 P. 1021 (1908)), which supports the surface stream in its natural state or feeds it directly (Huffner v. Sawday, 153 Cal.86, 92, 94 P