The Water District and the State
abstract. In much of the American West, water districts dominate water governance. These districts serve vitally important functions in regions challenged by aridity, growing populations, and climate change. These districts also often operate within boundaries developed a century ago, or more, and under governing rules that are undemocratic by design. In many water districts, people who do not own land cannot serve on the governing board. Nor can they vote in water district elections. Not surprisingly, given their composition and power, water districts often thwart efforts to modernize and bring equity to water management.
This Article describes these problems. Drawing on original data and mapping, it shows how pervasive these undemocratic governance structures can be and how water districts with these structures are expanding their reach into new policy realms. It also explains continued problems with the geography of water districts. And it shows how some water districts have acted to thwart important state policy interests and why such conflicts are likely to increase.
This Article also explains how state governments can respond. It advocates a shift from impact litigation—which earlier generations of lawyers tried to use, largely unsuccessfully—to legislative activity. It explains specific steps state legislatures can take to reform water district governance structures, reset boundaries, and address districts that persistently undermine state policy goals. More generally, it explains how different governance frameworks can replace states’ current hands-off approach to water district oversight.
author. Harry D. Sunderland Professor of Law and Associate Dean for Research, University of California College of the Law, San Francisco. I thank Michelle Anderson; Eric Biber; Molly Bruce; Ming Hsu Chen; Barbara Cosens; Amanda Cronin; Kristin Dobbin; Nataly Escobedo Garcia; Adam Gravley; Brian Gray; George Horvath; Michael Kiparsky; John Leshy; Yvette Lindgren; Drew Miller; Janet Neuman; Jodi Short; David Takacs; Tien Tran; participants in the U.C. Santa Barbara summer environmental-law workshop; and the Networks, Platforms, and Utilities online workshop for helpful feedback, suggestions at formative stages, and comments on earlier drafts. I thank Maximilian Fuery-Robbins, Ryan Martin, Celine Moubayed, Margaret Von Rotz, Megan Wilhelm, and Ben Witeck for research assistance and the students at the Yale Law Journal for excellent editing.
Introduction
In January 2020, local-government agencies across much of California submitted long-term plans for managing groundwater.1 Groundwater is precious in California, particularly in rural areas; it supplies forty percent of the state’s agricultural and urban water,2 and many people have no other water source.3 In California, as in many other places, groundwater supplies also are imperiled.4 In 2014, California responded to its groundwater crises by enacting a landmark statute, the Sustainable Groundwater Management Act (SGMA).5 The Act required local-government entities to respond to the state’s groundwater-management challenges by drafting and implementing “groundwater sustainability plans.”6
Yet many of the plans contemplated years of continued groundwater depletion.7 One study predicted that over the life of the plans, thousands of wells would go dry, and between 46,000 and 127,000 people would lose some or all of their water supply.8 Many of these people live in what California law refers to as “disadvantaged unincorporated communities”—poor communities, generally with predominantly nonwhite populations, that occupy county land and receive few municipal services.9 The declining water levels thus would have their most pronounced effects on some of the state’s most vulnerable people.10 The state government, which reviews groundwater sustainability plans, rejected a few of those plans, and more protective plans may be forthcoming.11 But those second-round plans still will be drafted and implemented by the same governing bodies that had adopted first-round plans under which thousands of people would lose access to groundwater.12
How could this happen? There are many potential reasons, one of which is the basic challenge groundwater managers face.13 In many parts of California, groundwater managers face genuinely wrenching decisions about how to balance the goal of protecting domestic water-supply wells against the competing goal of sustaining an agricultural economy.14 Meanwhile, the strains of climate change are making water management more difficult.15 Land-use law also is a contributing factor, for many of these isolated and neglected communities did not become that way by accident.16 But a likely additional factor is the way California governs water.
In California, as elsewhere in the West, water management is dominated by local special districts.17 Many of these districts operate independently of city and county governments and with only modest levels of state oversight.18 They decide when to form, what areas to include, and when to disband.19 They often take on functions—like groundwater regulation—that extend beyond delivering surface water to farmers.20 And they are often controlled by large landowners, not just as a practical reality but as a matter of law.21 Unless they own land—and many, including large numbers of renters, do not—the residents whose wells will go dry are legally prohibited from serving on the boards of many of the water districts that regulate groundwater use.22 Likewise, even if those residents are citizens and registered voters eligible to vote in other local elections, many of them cannot participate in water district elections.23 Even if they could participate, many of them live across borders from the government entities that are influencing their water levels, for maps of California water district boundaries make even the most gerrymandered congressional districts look orderly and rational.24 It should not be surprising if some of these districts are unresponsive to residents’ concerns and to state policy goals. They are built to be that way.
This California example, though distinct in some ways, illustrates patterns of water governance that recur across the American West and that sometimes extend into the eastern United States. Throughout much of the West, water districts hold extensive water rights and play significant roles in water governance.25 For many key aspects of governance, local control predominates; the laws of western states leave water district formation, expansion, retraction, and dissolution to local landowners’ discretion.26 Though no other state matches California’s level of geographic absurdity, others also have water district boundaries that have little to do with either watershed27 boundaries or the jurisdictions of other government entities.28 Legal frameworks for district governance likewise favor large landowners, often to an even greater extent than in California.29 And state regulation of water use, though present, often involves a decidedly gentle touch.30
Though water districts, and special districts more generally,31 receive less attention than their importance merits,32 concerns about water district governance have simmered for years.33 Reformers have achieved occasional successes.34 But high-profile cases challenging the constitutionality of landowner voting have mostly failed,35 and in their wake, most states have not seen a real push for change. In recent decades, the state-law reforms that have been implemented generally nibble around the edges of existing systems36 or even reinforce them,37 and they are rare; much of the statutory text setting water district governance systems is decades old. States could take more active roles in district governance, though the politics are difficult.38 All districts owe their existence to state legislation, and that legislation could change.39 But, for the most part, it does not.40 Meanwhile, academic theorizing of local governance generally looks past water districts, and special districts more generally, lumping them in as afterthoughts to cities, if they are even mentioned at all.41
This Article maps a different path for water district governance. It argues that state governments should play more active roles and that reformers should emphasize legislation.42 It advocates several specific reforms. One set of reforms focuses on elections. It includes extending voting rights, promoting increased election-related transparency, and limiting the tasks undertaken and privileges received by districts that lack democratic governance structures.43 If districts wish to use corporate governance structures and insulate themselves from public oversight, they should be able to do so, but then they should be regulated like private corporations; they should not receive powers and perks typically reserved for government entities. A second set of reforms focuses on boundary rationalization. Western states rarely tinker with the boundaries of districts, even where those boundaries have long ceased to make sense, and states need mechanisms for boundary adjustment.44 Third, states should develop procedures and standards for taking water district operations under state control—or even, at the extreme, dissolving water districts.45
Underlying these changes is a different vision of the relationships between local governments and states. In many western states, water districts have been established, powerful, and self-governing for so long that it is hard not to think of their governance as beyond the power of the state to change. That expectation of a hands-off state accords with ways Americans tend to think of local governance more generally. Despite legal rhetoric about cities and counties being powerless against states,46 we do not typically expect state legislation to adjust city or county boundaries or to mandate different governance forms.47 The expectation also accords with common themes of academic writing about local governance, for that writing often celebrates local governance and treats state authority as a problematic threat.48 Indeed, that threat seems to be growing, with states adopting increasingly draconian limits not just on specific city initiatives but also on cities’ basic ability to govern. But while this view has its merits as applied to cities,49 water districts are a different story—and an important reminder of the need for more nuance and differentiation in discussions of local governance. States have the power to change water districts’ governing rules, just as they had the power to—and did—set those governing rules in the first place.50 And, as this Article will demonstrate, there are good reasons for states to act, even if state actions will not come easily and will inevitably have their own flaws. I do not argue that states should simply displace water district governance, except in extreme cases; collaborative relationships should and would evolve. But those collaborations should be backed by stronger and more engaged state authority.
This Article’s analysis proceeds as follows. Part I provides background on water districts, explaining why they came into existence, how they are legally formed, what they do, and why they are worthy of more attention than local-government and even water-law scholars have traditionally given them. Part II explores reasons for concerns about water district operations and governance, focusing on undemocratic entities pursuing classically governmental tasks, boundary problems, and open opposition to important state policy goals. Although Part II draws heavily on examples from California, including original empirical data on, and mapping of, groundwater governance systems, these examples hold broader implications. With water, as with other policy arenas, California often is a harbinger of policy challenges elsewhere. Part III discusses potential reforms. It begins by explaining, at a conceptual level, how relationships between water districts and states could function and why those relationships do not fit with conventional understandings of state-local interactions. It then proposes specific measures to improve water district governance.