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Expert Advice

Jul. 2, 2015

California Drought: New Groundwater Regulations Emerge

New standards are created as California's aquifers strain under drought.

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.

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Donna Mallard

Daily Journal Staff Writer

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