By the end of 2002, 22 of California’s 58 counties had adopted ordinances that restrict the export of groundwater. Although the specific language of the ordinances varies, one common thread is their focus on the regulation of exports, as distinct from groundwater uses on-site. In most ordinances, “exports” are defined as shipments of water beyond the county’s administrative boundaries. Although several counties apply instead an “out-of-basin” definition of exports, and several others an “off-parcel” definition, a review of the implementation record suggests that these nonadministrative boundaries reflect an intent to protect the ordinance against potential legal challenges (discussed below) rather than to regulate groundwater use within the county.1
The precursor to this movement was the adoption by three northern counties (Butte, Glenn, and Sierra) of urgency ordinances prohibiting
____________
1Counties with “out-of-basin” restrictions include Inyo, Kern, Mono, and Siskiyou.
Counties with “off-parcel” restrictions include Tehama, San Benito, and Sierra. Imperial County’s ordinance has separate restrictions on exports leaving the county and on groundwater extractions for within-county use. As discussed in Chapter 5, only three counties within this group—Imperial, San Benito, and Sierra—have enforced a permitting process for within-county uses. For details, see Hanak and Dyckman (2003).
the “mining” of groundwater in 1977, a year of severe drought. Modoc County followed suit early in the following year, with an ordinance limiting transfers outside the groundwater basin. Over the next 15 years, a handful of Sacramento Valley and mountain counties introduced ordinances with explicit export restrictions. The slow pace may be explained in part by the fact that two counties, Inyo and Nevada, saw their ordinances successfully challenged at the trial court level during the 1980s.2 The floodgates opened once a third county, Tehama, won an appellate court victory in 1994, upholding its authority to regulate groundwater.
Since the Tehama decision, which was widely publicized in water law and county government circles,3 14 counties adopted explicit export restrictions for the first time, and three counties regularized urgency ordinances adopted earlier (Figure 3.1).4 Geographically, the group is concentrated in rural California: the mountain counties to the north and east, the Sacramento and San Joaquin Valleys, and Imperial County to the south (Figure 3.2). By and large, these counties fall into the group traditionally considered “source” regions for the state’s water supply;
many have relied heavily on groundwater for agriculture.
Over this period, five other counties adopted groundwater protection ordinances that focus on management of groundwater resources within the county or in a particular geographic subarea.5 The regulations include various types of restrictions on extraction for on-site use (e.g., well permitting, flow monitoring, pump taxes). In effect, the county
____________
2Inyo County’s ordinance was successfully challenged by the City of Los Angeles in 1983 (City of Los Angeles, Department of Water and Power v. County of Inyo, case no.
12,908, July 8, 1983). Nevada County’s ordinance, introduced in 1986, was successfully challenged in a suit brought by the Truckee-Donner Public Utility District in 1988.
Inyo pursued the matter through negotiations with the City of Los Angeles and reintroduced a revised ordinance in 1998. Nevada County did not seek review and has not reintroduced an ordinance subsequent to the Tehama holding. For this reason, we have not counted Nevada among the 22 counties with export restrictions.
3See Goldsmith (1995a, 1995b) and Bunn (1997).
4In addition, Modoc County introduced a more stringent ordinance restricting exports out of the county rather than the basin in 2000, and Inyo reintroduced an ordinance in 1998 to replace the one invalidated by its court proceedings in the early 1980s.
5For details, see Table B.1, middle column.
Export restrictions
0 1 2 3 4 5
1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002
Number of ordinances per year
Tehama County court victory
NOTES: For details, see Table B.1. The dates refer to the adoption of regular ordinances restricting exports.
Figure 3.1—Adoption of County Ordinances Restricting Exports assumes an authority resembling that exercised by other specialized groundwater institutions present in the state: basins adjudicated by the courts, special groundwater management districts created through acts of the legislature, and certain special water districts that exercise full control over access to the resource.6 In adjudicated basins, use rights are
attributed to individual users in much the same way as surface water rights. In the special districts with groundwater authority, the districts have the authority to regulate individual water use, typically through pump taxes.
Counties with these types of groundwater management institutions tend to be located along the coast and in Southern California; most have significant urban populations. The on-site groundwater protection ordinances appear to substitute for or complement the activities of special districts and adjudicated basins. Ordinances substituting for other measures include those of San Diego and Napa Counties; in Napa,
____________
6For maps showing the location of these institutions, see Figures B.2 and B.3.
Export restrictions
NOTE: Kern County’s ordinance is limited to the southeast portion of the county within the Lahontan hydrologic region.
Figure 3.2—California Counties with Groundwater Export Restrictions, 2002 officials view the ordinance as an alternative to a costly adjudication process. Counties where the ordinances complement other institutions include Monterey, Mendocino, and San Bernardino. In Monterey, the ordinance applies to several zones not already covered by a special
groundwater district. Mendocino’s ordinance applies only to the town of
Mendocino, where a special district has groundwater authority. The San Bernardino ordinance applies to desert regions of the county not already under a local management system and notably excludes the Mojave Basin, which is adjudicated.
At first glance, several of the mountain counties (Lassen, Modoc, Mono, and Sierra) seem to be exceptions to this geographical division because they have adopted both special groundwater management districts and countywide ordinances restricting exports. However, all but one of the six special groundwater districts in these counties were set up with the primary purpose of controlling exports rather than for local use management.7 Siskiyou County also appears as a partial exception, by virtue of the presence of one adjudicated basin. As noted above, several of the counties with export restrictions have ordinances that would, in principle, provide authority to regulate in-county uses as well. However, this authority appears to be exercised actively in only three counties—
Imperial, San Benito, and Sierra.