The state's persistent drought shows little sign of abating. Faced with depleted reservoirs,
dust-bowl-like conditions in the Central Valley, and a dismal snowpack, Californians
have increasingly utilized groundwater reserves to meet demand.
But there were few controls. Last year both the Legislature and the courts addressed
the issue, creating sweeping new standards for what had been a barely regulated resource.
Common Law
Until recently, California was the only western state without a comprehensive regulatory
scheme for groundwater extractions. Instead, groundwater use was subject to a complicated
common law system, by which groundwater was allocated through a tiered system of rights.
(See
City of Barstow v. Mojave Water Agency, 23 Cal. 4th 1224, 1240 (2000).) This meant that when groundwater was plentiful,
all users could pump as much as they wished with little dispute. Though counties and
cities had the authority to manage groundwater if they desired, few actually did.
Sustainable Management
After three years of drought, the Legislature in August passed the Sustainable Groundwater
Management Act (SGMA) in an attempt to slow depletion of the state's 515 groundwater
basins. (Cal. Water Code §§ 10270-10736.6.) The law takes a regional approach, authorizing
a local agency - or a combination of local agencies - to designate themselves the "groundwater
sustainability agency" for each basin. Once designated, a groundwater sustainability
agency must develop a plan for the basin and is granted broad authority to limit extractions
and enforce the plan. Should a sustainability plan fail to meet statewide requirements,
state agencies may step in to impose their own plan.
A key element of the legislation is its focus on basins that the Department of Water
Resources has designated as high or medium priority: roughly 130 basins that provide
nearly 90 percent of the state's groundwater. Basins that are subject to an adjudicated
plan under the common law regime are exempt. (Cal. Water Code § 10720.8.)
Though considered by many to be a step in the right direction, implementing this matrix
is sure to be arduous. With the imposed deadlines spread out over the next 50 years,
there may be conflicts among local agencies seeking control of a regional basin. Owners
of existing groundwater rights also are concerned as the new regime takes shape.
In the Courts
The judiciary has also tentatively entered the policy fray. Last July a Sacramento
trial judge took the novel step of applying the public-trust doctrine to groundwater.
(
Envtl. Law Found. v. State Water Res. Control Bd., Sacramento Super. Ct. No. 34-2010-80000583 order filed July 15, 2014.)
The case dealt with permits issued by Siskiyou County for groundwater extractions
near the frequently dry Scott River in Northern California. The petitioners argued
that the public-trust doctrine - which dictates that the state has a duty to protect
navigable surface waters from uses that would infringe on recreational, commercial,
and environmental uses - should extend to groundwater that is hydrologically connected
to such navigable surface waters. The superior court agreed, ruling that when the
county issues permits it must consider the impact of groundwater extraction on navigable
surface waters.
Siskiyou County petitioned for expedited review in the state Supreme Court, but in
mid-February the high court declined to hear the case. Back at the trial court, the
environmental petitioners will have to prove that the Scott River is navigable and
that the groundwater extractions are adversely affecting public-trust uses. (In March,
the county moved for reconsideration in light of the SGMA. But the court denied the
motion, finding that there is no inherent conflict between the new statute and the
public-trust doctrine.)
Whether groundwater legislation or court cases can offer California any relief from
the drought remains to be seen. Regardless, the SGMA is sure to affect a wide variety
of industries, interests, and individuals throughout the state.
Belynda Reck is a partner at Hunton & Williams in Los Angeles.
Donna Mallard
Daily Journal Staff Writer
