Why California Law Requires a Clear Benefit for Groundwater Recharge

Aquifer recharge by itself isn’t enough to win a water diversion permit in California, says Erik Ekdahl of the State Water Resources Control Board. A more specific benefit is required, and the board is working to ease the process.

Written by Matt Weiser Published on Read time Approx. 5 minutes
Researchers found that removing a section of old levee on the Cosumnes River Preserve in California appreciably restocked groundwater aquifers. State law requires a specific benefit to come out of such recharge efforts before granting a water diversion permit. Scientists on the project included, from left, Drew Nichols of U.C. Davis; Christina Bradley, U.C. Merced; Carson Jeffres, U.C. Davis; and Marilyn Fogel, U.C. Merced.Photo courtesy UC Merced

Researchers at the University of California recently highlighted a flaw in state law that may prohibit diverting streamflow to recharge groundwater. The problem is that groundwater recharge by itself is not considered a “beneficial use” under state law, and meeting that definition is a requirement to obtain a permit to divert water.

Officials at the State Water Resources Control Board, which oversees water rights, say the reality is not so clear-cut. In fact, existing rules allow most groundwater recharge projects to obtain a water right. It’s just that they may not be awarded that right for the act of recharge by itself. The applicant would have to specifically target some ancillary benefit of recharge, such as salinity control in an aquifer or reversing land subsidence caused by overpumping groundwater.

The U.C. researchers, among other things, recommended that the water board develop new regulations to clarify that those kinds of nonextractive uses of groundwater are, in fact, a beneficial use. But the water board has no plans to do so, asserting that existing rules are adequate.

To explain all this further, Water Deeply recently spoke with Erik Ekdahl, a deputy director in the division of water rights at the state board.

Water Deeply: Why isn’t the water board changing the rules to make groundwater recharge a beneficial use?

Erik Ekdahl: Two main reasons. The first is that it leads to trouble and potential “cold storage,” for lack of a better term, related to junior water-right holders and senior water-right holders.

If you start making groundwater recharge a beneficial use, what that does is it allows senior water-right holders to start placing vast amounts of water into aquifer storage that downstream junior water-right holders essentially no longer have access to. It really messes up the order of things, including how much people pay for water.

Let’s say you have a very senior water-right holder and they have a license for maybe 1,000 acre-feet a year. Yet they’re only able to actually use 300 a year, because that’s how much they need for their crops. So they have a right to 700 additional acre-feet, but no place to use it.

Upon making groundwater recharge a beneficial use, what you basically allow that senior water-right holder to do is put that extra 700 acre-feet into storage. They can lock that up and keep it underground, and they don’t have to do anything with it. Then all the downstream users don’t have access to it. So something a junior water-right holder might have been getting very cheaply, they suddenly might have to pay a couple hundred dollars an acre-foot or more to get. It reduces the amount of water that might be available, and it changes the cost structure.

Water Deeply: And what’s the second reason?

Ekdahl: The second is that you don’t really need to. I think that’s the more important one.

There seems to be the mistaken belief among a lot of water-right users that if you just made groundwater recharge a beneficial use then it would be really easy to get a groundwater storage permit. Yet that’s not really the case. It doesn’t address the things that really fundamentally drive the water-right permitting process – which are whether or not they have done an environmental review and whether or not there is actually water available, as well as the effects on downstream water users and the environment. We still have to address all of those things. So simply making groundwater recharge a beneficial use doesn’t avoid those issues that take a long time to address.

The other element of this is that when you really look at what people want to use groundwater storage for, we already include those as beneficial uses. Typically, it’s because they want to use it for their irrigation or municipal supply later on. That’s already a beneficial use. You don’t need to create a new type of beneficial use to account for that.

Other issues include what we might call “in situ” beneficial uses, or nonextractive uses. This could include recharging groundwater as a seawater barrier, protection from land subsidence or protecting instream flows. Pollution control could be a beneficial use. Those are all beneficial uses, as well. In fact we have permitted those types of things in the past. The storage itself doesn’t fundamentally affect the aquifer. It’s what use comes out of it after that’s fundamentally important.

Water Deeply: What about the goal of achieving sustainability in an aquifer, as required by the Sustainable Groundwater Management Act. Is that a beneficial use?

Ekdahl: It could be. I would take a slightly more skeptical view of this idea that we need to recharge an aquifer just to meet that definition in the SGMA. Why are you trying to reach some water level in the aquifer? It’s almost certainly going to be for a number of reasons: That’s the level at which most of your private domestic or municipal wells are at [or] at which subsidence no longer occurs – or to repel salinity. There are all these other issues that would actually drive the need to raise the aquifer level to some point. And those would all be beneficial uses.

The other idea that I think merits a little bit of skepticism is this: If we’re going to raise the level in an aquifer, how realistic is that for most of these SGMA basins? I think that’s a pretty unrealistic goal for many basins. I think what we’re going to see in most SGMA plans is some kind of slow ramp-down to a level that’s lower than what we see today. I think it’s going to be really tough to raise groundwater levels in many of these aquifers without massive, massive changes in pumping rates or water application, or through recharge efforts. The mass balances just don’t work out otherwise.

Water Deeply: So if the water board has no plans to change the regulations on beneficial use, what is it doing to encourage more groundwater recharge?

Ekdahl: We are working internally to find ways to give better direction to stakeholders and do better outreach. We’ve added information to our website that clarifies examples of in situ uses, and also clarifies that you can use groundwater recharge to mitigate subsidence, support groundwater-dependent ecosystems, protect or enhance groundwater levels. We directly say this on our website now.

We’re going to look in the next couple of months to further clarify nonextractive beneficial uses, and how an applicant might go about applying for a permit. The messaging and communication on that is maybe still a little bit unclear on our end. We do want to work on providing more information to applicants. Maybe it’s more FAQs on our website; maybe it’s more outreach events. But we are working toward it.

We think we can permit and accommodate almost any kind of reasonable application that comes to us. We do encourage people to give us a call in advance and talk through why they are trying to recharge groundwater. We’ll tell them about all the different kinds of beneficial uses we can permit, and would be interested in working with the applicant to do so.

But I don’t want to make it sound like it’s going to be like buying a ticket at the fair and getting your water right. It’s still going to be a complex process. You still need to complete the California Environmental Quality Act process, go through a public notification process – and you’re likely to get protests, because most water-right applications do. We want these environmental protections in place to make sure we’re preserving instream flows for the environment or to protect senior water-right holders downstream.

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