Monday, November 11, 2024
Reforming Water District Governance
When academics write about local government, they generally aren’t thinking about water districts. Cities get almost all the attention, counties rarely get to be more than a sideshow, special districts are even more obscure, and water districts are particularly overlooked. In a just-published article, I argue that this obscurity is a problem.
Water districts matter to many people’s lives (western water law uses a wide variety of terms to describe agencies that manage water, and I’m using “water district” as an umbrella term). We all need water, of course, and many people, particularly in the West, get their water from water districts. Most western farmers also get their water from water districts, and that means water districts manage much of the water that gets diverted from streams and pumped from aquifers. Districts help decide who gets that water, how much of it is used, and what it costs.
Because of that importance, you might expect water district governance to be handled like, say, city governance, with officials elected by popular vote and with governing units organized along at least moderately sensible geographic lines. The reality is quite different. In parts of the west—particularly but not only California—water-district boundaries make congressional-district gerrymandering look sensible and restrained. And many of those districts are governed more like corporations than government entities. Directors are elected—if elections are held at all—only by landowners, with each landowner voting in proportion to its area of landownership. In some western states, and for some types of water districts, only agricultural landowners can vote. Similarly, in even more water districts, a renter would be prohibited by state law from serving on the board of directors.
In some ways, the reach of these governing arrangements is growing. Ten years ago, California enacted the Sustainable Groundwater Management Act, a landmark statute designed to bring sustainability to California’s use of groundwater. The act envisions local-government entities playing a lead role in groundwater-use regulation, and many of the entities that have stepped in to play that role are run, partly or entirely, by water districts, many of which are landowner-governed.
The map below illustrates this situation. The dark blue areas are GSAs that are entirely controlled by entities that have popular voting and that do not have ownership requirements for board service. The bright yellow areas are GSAs that are entirely controlled by entities with landowner-voting requirements and board-service requirements, with the intermediate shades reflecting a mix of controlling entities (the light gray areas don’t have GSAs). One might expect the map to be entirely dark blue; a map of county or city governance would appear that way. But there’s a lot of yellow, particularly in the San Joaquin Valley. That’s where California’s biggest groundwater-management challenges are arising. It’s also where dozens of small communities, many of them inhabited largely by poor people of color, are at risk of having their wells run dry.
(Ben Witeck, UC Berkeley class of 2025, created these maps, using data that he and I gathered.)
These governing arrangements have been around for a long time, and decades ago, in Ball v. James, 451 U.S. 355 (1981), a closely divided Supreme Court blessed their use, at least in some circumstances. But for a governance arrangement to be constitutionally permissible does not make it mandatory. Western state legislators used statutes to create these governance arrangements, and they could use statutes to change them. In the article, I argue that they should. I identify a series of reforms that could bring more democratic governance arrangements to water districts—or, if water districts prefer to be governed more like corporations, would compel them to forego some of the many benefits that now come with their government-entity status. I also argue for a more active state role in district governance.
The article makes no claim that these reforms would transform western water management. With or without these changes, water districts would still be single-purpose entities whose missions are sometimes at odds with state policy goals, and some degree of conflict is inevitable. Similarly, regardless of the governance structures in which they operate, western water managers will face difficult challenges. Balancing competing uses amid often-growing demand and climate volatility is hard to do no matter how a government entity is constituted. But oversight and accountability do matter, I argue, and entities that have no need to be responsive to some of the people they serve, or whose lives their actions affect, are less likely to take those people’s needs into account. Reforms are worth pursuing.
- Dave Owen
https://lawprofessors.typepad.com/environmental_law/2024/11/reforming-water-district-governance.html