The Shape of [Ground] Water (Law): California's New Act, and Prospects for Sustainability


In this chapter, I describe attempts to improve groundwater management in California in a context about which serious people have concluded [with language I once considered inappropriate but am now convinced is accurate] the law has been “a mess”. I summarize new legislation that is attempting to employ some of the principles that leading policy scholars have identified to make the management of California’s ground water more equitable. I lay out the challenges to developing new governance mechanisms in the context of radically different interests, a wide range of understandings of groundwater rights, and a changing physical environment. I then speculate on the prospects for success of the new governance regime including with reference to alternative regulatory and market strategies that are being used (or considered) to provide for better management. My analysis addresses legal issues that arise and need to be analyzed or confronted in consideration of new law. The challenges may be several. Among coverage: I attempt to respond to the chilling effect of threatened takings challenges to changes in groundwater rights. And I address how notions of equity and sustainability science may affect legal analysis in an era of scarcity.

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