Local Groundwater Withdrawal Permitting Laws in the South-Western U.S.: California in Comparative Context

The Sustainable Groundwater Management Act (SGMA) aims to control, for the first time in California's history, the state's significant use and depletion of groundwater. SGMA gives local agencies a high degree of discretion in relation to a new permitting power, but the discretion is a double-edged sword: agencies gain maximum flexibility to tailor their regime to local conditions, yet the statute provides no direction on appropriate components of a groundwater permitting regime. We introduce SGMA and the broader legislative context to its permitting power, and we explain the continuing common law context in which the legislation operates. This information is used as the foundation for a comparative legal analysis of fundamental elements of permitting regimes. We compare a selection of six other south-western permitting regimes established in legislation for areas recognized as requiring intensive management through permitting: "special permitting areas" (SPAs). We find that permitting regimes in south-western SPAs share a structure containing several almost universal elements, although the policy settings that apply to those elements vary widely. The established permitting regimes in the other south-western states' SPAs may inform Californian agencies seeking to use their new permitting power for the first time, as well as water agencies further afield, as to important components of a permitting regime, and the different policy settings that could apply to those components. Californian local agencies, and its Department of Water Resources, which is charged with providing local agencies technical advice, should have regard to these permitting possibilities.