In a move that activists hope could shift how water regulators statewide manage dwindling groundwater basins, the Sonoma County Board of Supervisors this week banned the drilling of all new wells for six months countywide while they draft a set of longer-lasting rules on using groundwater.
The moratorium comes as the county’s response to a lawsuit from the California Coastkeeper Alliance. The suit, filed in June 2021 and still active, demands that Sonoma County officials cease permitting new wells until they develop a process for reviewing the potential impacts on surface waters of pumping groundwater.
In August, the county’s Board of Supervisors considered but rejected a draft ordinance that would have required such a review process. They took the ordinance back to the drawing board for revisions and produced the draft that they again voted down by a margin of 4-1 on Tuesday.
In its place, the board issued the six-month well moratorium to buy time for revising the draft ordinance.
“This is an opportunity for the county to put together the ordinance,” said Drevet Hunt, California Coastkeeper Alliance’s legal director. “It’s a short moratorium, and that’s good because it forces them to get this ordinance written quickly.”
The ban makes exceptions for new wells meeting emergency water needs and wells that were already planned or under construction.
At the heart of the punted ordinance, and the California Coastkeeper Alliance’s lawsuit, is the public trust doctrine, a law with roots stemming to pre-American England and which ostensibly protects a variety of commonly shared public resources, including air and the ocean. The public trust doctrine also protects navigable waterways, like rivers and their larger tributaries.
The draft ordinance, which will be reconsidered next spring, would require the county to conduct a public trust review of proposed wells — specifically a look at how they might affect surface waterways — before issuing permits to landowners hoping to drill them. Wells drawing less than 2 acre-feet — about what four average households consume in a year — would be exempt, as would replacement wells for existing residences and farms.
Though California officials closely guard surface water supplies, there are few restrictions on pumping groundwater. This has led to overdraft issues, causing thousands of residential drinking wells to run dry in recent years.
The Sustainable Groundwater Management Act, or SGMA, a new set of state laws passed in 2014, aims to regulate groundwater use and has been widely hailed as a saving grace to California’s aquifers, but won’t take effect for another 18 to 20 years in much of the state.
Meanwhile, thousands of drinking water wells have run dry, mostly in the San Joaquin Valley, forcing many residents to rely on bottled water.
“There are a million people out there who don’t have clean water because large farms have pumped out the aquifers deeper than residents can drill,” said Don McEnhill, executive director of Russian Riverkeeper, a Sonoma County member group of California Coastkeeper Alliance. “We don’t want to go down that road.”
The well moratorium, effective from Tuesday through April 4, 2023, comes as the West enters the fourth consecutive year of drought. Heat waves and dry spells have depleted reservoirs and high-mountain snowpack, inducing policy-level panic among water providers. Scrambling to adapt, they’re building water treatment plants, banning lawns, shaming water hogs, desalinating the ocean, exploring ways to squeeze water from thin air, and even plotting out a water pipeline from the Mississippi River.
But in California they’ve done almost nothing to protect large rural groundwater basins. Farmers statewide have commissioned the drilling of more than 6,750 irrigation wells since 2016, according to a 2021 report from the California Department of Water Resources. The same document revealed that “[m]ore domestic and irrigation wells were installed this year than in any of the previous 5 years.”
In Sonoma County, officials issued permits for 303 wells in a 15-month period ending in July, according to records acquired by the California Coastkeeper Alliance. According to the website of the county planning agency, Permit Sonoma, the department receives about 300 well applications each year.
Because the state imposes no limits on how much water a well owner can pump from the ground, vast groundwater basins are being drained. The Department of Water Resources reports that upwards of 1,200 wells statewide have gone dry this year, dramatically up from previous years.
Towns in the San Joaquin Valley have all but run out of water as irrigated orchards around them flourish. State lawmakers even voted in August to kill legislation, Assembly Bill 2201, that would have created new restrictions for agricultural wells.
Roger Dickinson, policy director of the Sacramento-based nonprofit CivicWell, which promotes sustainable policies and community change, notes that, even in the face of existential water equity crises, it’s easy for lawmakers to kick the can down the road.
“It’s always hard, especially politically but also economically, to make decisions that are disadvantageous in the moment for existing constituents on behalf of constituents who don’t yet exist,” said Dickinson, who was a coauthor of SGMA. “The constituents who don’t yet exist, by definition, don’t vote and they don’t complain, and the people who are around now do. The natural inclination of humans isn’t to respond to those who are yet to come.”
SGMA, he said, reminds us “that we don’t have the luxury to only think about ourselves.”
California’s dearth of regulations on groundwater use creates a jarring regulatory dissonance when coupled with the tight, and often contentious, rules on using surface water. In August, state officials adopted emergency restrictions on diverting water from the Russian River, affecting hundreds of Sonoma County landowners with surface water rights. Similarly in the Central Valley, allocations of water from the Sacramento and San Joaquin rivers were stiffly curtailed this summer.
Environmental advocates think groundwater resources should be treated with similar rigor. Geoff Ellsworth, the mayor of St. Helena in Napa County, has rallied for groundwater protection for years. He said it doesn’t take advanced research to prove that surface water and groundwater are related.
“When you pour water on the ground, it disappears — now it’s groundwater,” he said.
McEnhill said that connectivity is easy to see in the Russian River watershed. He said the “underflow” of the Russian River extends outward hundreds of yards horizontally such that wells in the river valley are essentially drawing up surface water, sometimes creating visible impacts.
“There have been times when no one was diverting surface water but the river level was magically dropping,” he said, blaming almost uncountable wells along the river for depleting underlying groundwater.
California Coastkeeper Alliance’s 2021 lawsuit against Sonoma County cited a 2018 court case from Siskiyou County, in which a judge ruled that pumping groundwater at a rate that harms a navigable waterway may be a violation of the public trust doctrine. Though this system of rules does not specifically protect groundwater, the 2018 ruling demonstrates how it could.
“That decision was a game-changer,” said Brian Gray, a senior fellow at the Public Policy Institute of California’s Water Policy Center. “It says that even though the public trust doctrine doesn’t apply directly to groundwater, it may nevertheless limit groundwater pumping that harms public trust uses in a river that is hydrologically connected to and supported by groundwater.”
Sonoma County farmer Tristan Benson, who dry-farms about 100 acres of grain for bread and brewing, said “putting more and more water-thirsty crops in the ground that depend on groundwater is just insane.”
The county’s well moratorium addresses fundamental groundwater depletion problems, but Benson said it creates new legal ones pertaining to existing water rights that stem back to California’s pre-statehood days, when the Mexican government issued land grants and water rights.
“The county’s ordinance would violate pre-existing water rights grants,” he said. “The county can’t put restrictions on those parcels.”
Benson said the county has opened itself up to numerous lawsuits from landowners with pre-statehood water rights.
“The county has to get a better handle on state water law,” he said.
Ellsworth takes a different view on water rights history. The way he sees it, agriculture has long been prioritized over communities and towns. Now, he wants to see more groundwater management actions statewide, and the sooner the better.
“We have to rethink how we’re using up our groundwater, because we are in a different era now of climate disruption,” he said. “So much of our economy is based on looking at the sky and saying, ‘Please rain!’ We can get by for a few years if you have groundwater, but eventually that runs out if you aren’t carefully managing it.”