So here’s the bottom line: The legality of groundwater marketing depends on common law doctrines that vary by state and were created long before massive groundwater water marketing was even possible. The public trust doctrine does not apply to groundwater and does not prohibit water marketing, at least as currently applied by courts.

But he’s worried about overdrafting. No worries, I said:

Economists have the solution to your problem. It’s NOT lawsuits. It’s either:

1. Self regulation by ALL overlying property owners;
2. Taxes on withdrawal to stabilize water tables; or
3. Quantification (adjudication) of individual rights.

After that “cap” you can trade

1. Provides more background on the state’s current approach to groundwater management;
2. Addresses current issues with groundwater management, including the impact of water quality on water supply;
3. Addresses the disconnect between the law and science of groundwater; and
4. Reviews other states’ approaches to groundwater management.

After that, the LAO recommends that the Legislature:

• Phase in a more comprehensive groundwater monitoring system to allow the state to focus funding and technical assistance efforts in the areas of greatest need.
• Establish Active Management Areas (a defined geographic area where specific rules are established to govern the withdrawal and use of groundwater), in circumstances where groundwater overdraft potential or the extent of pollution problems are the highest.
• Bring science and law together to modernize groundwater law to accurately reflect the physical interconnection of surface water and groundwater.
• Consider phasing in statewide groundwater permitting over a multiyear period, based on data from expanded monitoring requirements, while maintaining local control over implementation of permitting to the extent possible.

I totally agree, and…

1. Don’t make Arizona’s mistake about exempting “household” wells in AMAs. That exemption has been big enough to drive a subdivision through. Read more here (source of photo)
2. Orange County has been taxing groundwater withdrawals since 1953!
3. SO TRUE: “The erroneous distinction now reflected in California law between surface water and groundwater is an impediment to the establishment of surface water rights that accurately reflect the science of water.” No rights, no markets; no markets, no “highest and best use,” and bad for us.

I was shocked to see that Catherine Freeman (LAO author of this report), was not on the agenda at the WEF’s International Groundwater Conference, to be held in June near San Francisco. Big mistake — or was it?