Cooperative federalism is one of the most important innovations of American governance. In a cooperative federalism system, the federal government delegates to states the authority to implement a federallycreated program, and those state implementing actions are subject to federal administrative oversight and mandatory review. This basic governance model now pervades federal-state relations and has received enormous amounts of academic attention.

This Article considers whether analogous arrangements make sense for state and local governments. Such arrangements do exist, but they are not nearly as prevalent as their federal-state counterparts, and they have received little attention from scholars. Yet many of the theoretical arguments in favor of traditional cooperative federalism extend to relationships between state and local government. And a review of three long-established, state-local programs—land use regulation in Oregon and Florida and air quality regulation in California—demonstrates that these cooperative subfederalism arrangements can succeed. That success never comes easily, and it depends upon a highly interactive governance model. The divided spheres of traditional federalism theory hold little promise in this realm. Nevertheless, cooperative subfederalism offers a promising alternative to more traditional ways of structuring state-local relationships.

Beyond supporting changes in state and local governance, this study also has implications for traditional federalism doctrine. Most importantly, it undercuts the tendency, which is particularly pronounced in Supreme Court decisions, to assume that state government subsumes the benefits of localism. It also corroborates and extends recent scholarly work emphasizing federalism as a system of governmental integration, and it undermines the Court’s and some commentators’ emphasis on federalism as a system of divided and limited governmental authority.

This issue brief considers whether groundwater recharge currently qualifies, or should qualify, as a beneficial use of surface water under a California water right. Currently, the lack of an explicit policy regarding recharge for non-extractive purposes — that is, for purposes such as combatting subsidence, raising regional groundwater levels, or supporting baseflow or ground-water dependent wetlands — creates uncertainty and confusion. To bring much needed clarity, the State Water Resources Control Board (the Board) should provide guidance explaining that recharge for non-extractive purposes can be a beneficial use of water. That guidance should explain the conditions under which recharge for nonextractive purposes is beneficial and the evidence water managers should provide to support a beneficial use determination.

In California, droughts are likely to become more frequent, longer, and more intense in the future, posing increasing challenges for water management, and raising the stakes for effective drought response. This project aims to help state water governance and decision-making structures adapt to the changing climatic reality. In a companion report in this volume, we analyzed the strategies the State Water Resources Control Board (Board) used for water rights administration and oversight during the last four major statewide droughts. Our findings suggest that more proactive planning and preparation, enabling reduced reliance on in-drought improvisation, would improve the Board’s future drought responses. This report builds on that retrospective analysis with specific recommendations.

Our vision is simple: During droughts, California’s limited water supplies should be allocated among different human and environmental water uses transparently, efficiently, and predictably, in accordance with the priorities that flow from state and federal law.

We suggest a structured means of implementing this vision that emphasizes proactive drought preparations. At the core is a contingency-based framework designed to support more timely and effective drought decision making. A suite of complementary actions aims to reduce uncertainty and lay the groundwork for improved water rights administration and oversight in future droughts. These actions include making key policy decisions that affect drought response in advance, strategically improving decision-related information, maximizing learning from droughts, prioritizing water rights enforcement between droughts, and capitalizing on the many synergies that exist between the Board’s drought and non-drought work to achieve better water management outcomes, greater clarity for water users, and more efficient use of state resources. We view these actions as crucial components of effective climate adaption for California and encourage the Board to begin implementing them now, so that it is better prepared to face the challenges the next drought brings.

California droughts are likely to become more frequent, longer, and more intense in the future, posing increasing challenges for water management, and raising the stakes for effective drought response. This project aims to help state water governance and decision-making structures adapt to this changing climatic reality.

The State Water Resources Control Board (Board) has significant responsibilities for California water rights administration and oversight, and the decisions it makes affect how scarce water resources are allocated among different human and environmental uses during droughts. We analyzed the strategies the Board used for water rights administration and oversight during the last four major statewide droughts, in water years 1976–1977, 1987–1992, 2007–2009, and 2012– 2016. The Board employed an array of different drought response strategies that varied in depth and breadth from drought to drought. We discuss thirteen types of strategies organized into four broad categories: (1) addressing urgent water right requests, (2) providing oversight of existing diversions, (3) providing oversight of water use by end users, and (4) cross-cutting strategies that support or complement strategies in the first three groups. The Board engaged in the greatest breadth and depth of strategies during the recent drought.

Despite some significant and creative in-drought efforts by the Board and others, which led to positive developments during and immediately following each drought, relatively little proactive preparation for drought-specific water rights administration and oversight appears to have occurred between droughts. Instead, our research suggests the Board developed its drought responses on a largely ad hoc basis in the midst of each drought emergency, with varying degrees of success. We conclude that more proactive planning and preparation would improve the Board’s future drought responses, making them more transparent, predictable, timely, and effective. A companion report in this volume builds on this analysis with specific recommendations

California’s Sustainable Groundwater Management Act (SGMA), passed in 2014, recognizes and addresses connections between surface water and groundwater. The statute is California’s first statewide law to explicitly reflect the fact that surface water and groundwater are frequently interconnected and that groundwater management can impact groundwater-dependent ecosystems, surface water flows, and the beneficial uses of those flows. As such, SGMA partially remedies the historically problematic practice of treating groundwater and surface water as legally distinct resources. SGMA requires groundwater sustainability agencies (GSAs) to manage groundwater to avoid six undesirable results, including significant and unreasonable adverse impacts on beneficial uses of surface water. While this aspect of SGMA is clearly important, significant uncertainties exist regarding how GSAs will actually define and achieve this goal. Addressing SGMA’s requirements for groundwatersurface water interactions will be difficult. Defining the issues at stake in any given basin, let alone successfully balancing the range of uncertainties and potentially conflicting interests, will pose challenges for many GSAs. No clear, pre-defined formula exists to guide GSAs in determining what significant and unreasonable depletions of interconnected surface water will be, or whether planned actions will sufficiently avoid them. Yet they are required to do so. Many GSAs will face pressure to aggressively address impacts on surface water in their basin. Many will face equal or greater pressure not to draw the line. Nevertheless, it will fall to the GSAs to make a determination, and to defend it in their groundwater sustainability plans (GSPs). Therefore, GSAs will likely take on some level of risk—of successful political opposition to their GSP, of succesful legal challenges to their GSP, of their GSP performing ineffectively, or of all of these outcomes. Given the aggressive timeline inherent to SGMA, addressing this risk early will be crucial for preserving management options. Challenges and risk are not the whole story, however. The process of addressing groundwater-surface water interactions also offers GSAs an opportunity to help communities and other stakeholders resolve, or avoid, difficult conflicts, and to do so in lasting ways. While California law has only recently begun to seriously address conflicts between surface and groundwater uses, those conflicts have been occurring for decades, and in some places for over a century. SGMA, in other words, did not create conflict between groundwater pumping and beneficial uses of surface water; instead it created an opportunity—as well as an obligation—to respond to those challenges. Embracing that opportunity will not be easy, but GSAs that take SGMA as an opportunity to resolve longstanding issues can do lasting good. The research presented here examines some of the legal and institutional questions that will inevitably arise as GSAs seek to address groundwater-surface water interactions under SGMA. The core goal of this report is to help parties identify and address these questions, and ultimately to let GSAs and stakeholders manage groundwater-surface water interactions proactively and effectively.