Aquifers and Democracy: Enforcing Voter Equal Protection to Save California’s Imperiled Groundwater and Redeem Local Government

Abstract

California’s Sustainable Groundwater Management Act (“SGMA”) allows local entities that represent landowners, government agencies, or private companies rather than the public to take on exclusive power to regulate and manage imperiled groundwater resources. In at least some cases, the ways in which these entities are governed and controlled violates the one-person, one-vote requirement of the Equal Protection Clause, and even the requirement that local government representational structures have a rational basis. SGMA attempts to address a longstanding gap in California water regulation, the consequences of which have culminated in a statewide crisis. Despite its importance to the future of the state’s economy and environment, the law’s implications for democracy have largely been ignored. This note examines the ways in which SMGA invokes Fourteenth Amendment, and specifically, requirements for proportional representation in local government established by Avery v. Midland County and Board of Estimate v. Morris. It argues that voter accountability and proportional representation in groundwater governance are important to actually achieving the ultimate goal of the legislation: effective management and regulation of critically imperiled common pool resources in California. It also contributes to solving a bigger problem. Special districts comprise the most numerous sector of American government, with policy-making and administrative responsibility for vital environmental resources, infrastructure, and services. Better enforcement of the one-person, one-vote requirement in this sector will promote accountability and equity in local government throughout the United States.