by Dave Owen

California’s Sustainable Groundwater Management Act is known primarily for establishing statewide requirements for sustainable groundwater management.  But the statute did another important thing: it introduced an intriguing yet relatively rare model of state and local governance into groundwater management.

Typical state and local governance models involve delegating authority to local governments, with state intervention occurring on an ad-hoc basis (if at all); or, alternatively, keeping all authority at the state level.  SGMA, however, mandates local planning and implementation and state-level administrative review.

If SGMA involved the federal government and a state, there would be nothing new about this approach.  Analogous arrangements dominate federal-state relationships, where they are known as “cooperative federalism” systems (the word “cooperative” is not always descriptively accurate, but the phrase has stuck).  The Clean Air Act’s state implementation planning requirements, which served as a template for SGMA, are just one prominent example, and similar models recur in fields ranging from telecommunications to health care.

But in state-local relationships, such systems are much rarer, and state-local relationships differ from federal-state relationships in some important ways.  That rarity and those differences raise two additional questions: can SGMA’s unconventional approach to state and local governance succeed, and, if it can, what will it take to ensure that success?

It’s hard to use SGMA itself to answer these questions; the statute is too new.  So, three other long-standing governance programs with analogous structures were examined, using interviews with experienced government staff, private attorneys, and planners.  The results of that inquiry appear in this paper.

In Oregon and, until recently, Florida, land use regulation follows similar local-state models; and for decades California has subdelegated substantial air quality planning responsibilities from the Air Resources Board to local air districts. For SGMA, the study leads to several conclusions:

1. “Cooperative subfederalism” is a promising model.

When California adopted SGMA, it seemed risky to ask local governments to take the lead.  Since 1994, when the Third District Court of Appeal decided Baldwin v. County of Tehama, the authority of California’s local governments to regulate groundwater use had been clear, yet few of them had done so effectively.  Would a state mandate really make a difference?  Yet the interviewees were strikingly and consistently positive in their reviews of a cooperative subfederalism model.  They never claimed that governing within such a system was easy, and no one expects SGMA implementation to go smoothly.  But they generally agreed that a joint federal-state governance model was well-suited to the governance challenges of SGMA.

2. Making this model work requires highly interactive governance.

Some of the legal-academic literature on federalism and many United States Supreme Court cases have emphasized the importance of preserving distinct spheres for different levels of government. Yet interview subjects consistently emphasized the importance of integration, communication, and overlap.  Cooperative governance arrangements succeed, they said, when communication occurs early and often, and when the state’s approach is very hands-on.

For SGMA, this will mean a lot of meetings and conference calls.  But a secondary message that emerged, particularly from the Oregon interviews, was that the geography of interaction matters.  Oregon land use officials emphasized the importance of regional offices within the state land use agency; these offices operated as important interlocutors between Salem and local governments.  Some also emphasized the importance of sending the state’s decision-making board out on location, so that its members could see some of the areas in controversy and citizens outside the capital could see their state agency in action.  Similar benefits could arise for SGMA, and perhaps DWR and the SWRCB should budget for regional staff and road trips.

3. The state has to invest heavily in building local capacity, and in supporting local decision-making where capacity is lacking.

Another theme of traditional federalism literature is the idea that delegation enables the delegating government to conserve resources. The federal government, according to this way of thinking, delegates to states partly to accomplish things it lacks the budget and staffing to do on its own.  Similarly, California might delegate groundwater planning responsibilities to local governments as a way of getting around staffing and resource limitations at the State Water Resources Control Board and the Department of Water Resources.

To anyone thinking this way, the interviewees’ message was, “don’t get your hopes too high.”  They emphasized, instead, that the state had to invest major resources in developing and supporting local capacity, and in performing tasks that under-resourced local governments could not handle themselves.  They saw benefits in delegation, but saving the state money wasn’t one of them.

For SGMA, that suggests that sometimes the state will need to play a major role in helping GSAs develop their plans.  Developing detailed plan templates may be helpful, and sometimes DWR and the SWRCB may need to imitate their counterparts at the Air Resources Board and actually do GSAs’ modeling for them.  Fortunately, the state already is doing some of this work.  This research suggests it will need to do much more, and that while local agencies’ needs for state support will evolve, they will never really go away.

4. Specificity and clarity matter (but it isn’t always clear whether they will be helpful or harmful).

Another dilemma that often arises with delegation programs is the choice between open-ended and highly specific mandates.

Both SGMA and its implementing regulations provide examples of this dilemma.  The statute itself defines its central goal—sustainability—in somewhat vague terms (which are then defined with other somewhat vague terms), leaving implementing agencies some discretion to decide what outcomes the statute actually forbids.  And DWR’s implementing regulations require “substantial,” rather than meticulous, compliance, potentially adding more wiggle room.

Many interview subjects raised doubt about this kind of approach, and emphasized the importance of highly specific mandates in clarifying expectations and compelling action.  Others emphasized the importance of flexibility and criticized highly specific mandates for making decision-making overly legalistic.  Still others noted that striking an effective balance between specificity and flexibility was one of the most difficult challenges they had faced.  The implications for SGMA are uncertain, except for the basic point that striking this same balance is going to be hard.  But the interviews provide cause for concern that the combination of a flexible mandate and a flexible compliance standard may wind up creating unpredictability and undercutting motivations to impose controversial regulatory controls.

In summary, California’s selection of a collaborative state-local governance model was a sensible first step.  But making that model succeed is going to be hard work.

Dave Owen (owendave@uchastings.edu) is a professor at the University of California, Hastings College of the Law.

Further reading:

Cannon-Leahy, Tina.  Desperate Times Call for Sensible Measures: The Making of the California Sustainable Groundwater Management Act.  Golden Gate Envtl. L.J. 9, no.4. 2015.

Daniels, Katherine & Sullivan, E., Oregon’s 40-Year-Old Innovation: A Remarkable Planning Program Faces a Milestone — and Continuing Challenges. Planning, Feb. 2013.

Davidson, Nestor.  Localist Administrative Law.  Yale L.J. 126, no. 3. 2017.

Gerken, Heather.  Federalism All the Way Down.  Harvard L. Rev., v. 124, no.1. 2010.

Kiparsky, Michael, et al.  Designing Effective Groundwater Sustainability Agencies: Criteria for Evaluation of Local Government Options.  University of California, Berkeley, 2016.

Owen, Dave. Cooperative Subfederalism, UC Hastings Research Paper No. 258, 59 Pages Posted: 18 Nov 2017 Last revised: 22 Jan 2018, University of California – Hastings College of the Law, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3071907

Pelham, Tom et al., Twenty Years Later: Three Perspectives on the Evolution of Florida’s 1985 Growth Management Act.  Planning & Environmental Law.  58, no.7.  2006.

Powell, David L.  Growth Management: Florida’s Past as Prologue for the Future. Florida St. L. Rev. 28, no.2.  2000.

Walker, Peter A. and Hurley, P.T.  Planning Paradise: Politics and Visioning of Land Use in Oregon.  University of Arizona Press, 2011.

Weinstein-Tull, Justin.  Abdication and Federalism.  Colum. L. Rev. 117, no.4.  2017.