Any diversion and use of surface water in California requires a water right. Today, to receive a new water right permit, an entity that wants to appropriate surface water must file an application with the Board. The Board may only approve an application if it determines that the proposed use of the water is for a reasonable and beneficial purpose. Currently, there is uncertainty about whether—and, if so, under what circumstances—the Board will consider groundwater recharge to be a beneficial use of water. California law makes clear that the act of recharging groundwater, alone, is not a beneficial use of water. Instead, the specific purpose of the recharge is key.
Although they may employ the same range of recharge techniques, there are important distinctions between (1) recharge for the purpose of storing water to be subsequently extracted by pumping for above-ground use under the water right and (2) recharge for a non-extractive use without the intention to later directly remove the water from below ground by pumping under the water right. Because most non-extractive uses are not explicitly listed as beneficial uses in statutes or regulations, the Board determines, on a case-by-case basis, whether a non-extractive use amounts to a beneficial use of surface water. And details on the process for applying for a surface water right or water right change for non-extractive use are slim to non-existent. This may discourage potential rechargers from submitting an application for such a use.
Our UC Water Issue Brief assesses the current status of groundwater recharge in relation to the beneficial use doctrine and provides recommendations for clarifying current policy in order to encourage groundwater recharge projects.
Download the Issue Brief:
When Is Groundwater Recharge A Beneficial Use of Surface Water in California? (August 2018)
See the Legal Planet blog post:
Groundwater Recharge in the SGMA Era: California Clarifies Beneficial Use Guidelines for Recharge Projects Addressing SGMA Undesirable Results (May 3, 2019)
For More Information:
Contact Kathleen Miller, Research Fellow, Wheeler Water Institute, Center for Law, Energy & the Environment
This project is part of the UC Water Security and Sustainability Initiative and supported by the University of California Office of the President
Miller, K, N Green Nylen, H Doremus, D Owen, and A Fisher. 2018. When is Groundwater Recharge a Beneficial Use of Surface Water in California? Center for Law, Energy & the Environment, UC Berkeley School of Law, Berkeley, CA. 8 pp. Available at: doi.org/10.15779/J22D1H or law.berkeley.edu/research/clee/research/wheeler/gw-recharge-beneficial-use