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Environmental & Energy

Nov. 3, 2020

How to divide the groundwater pie and avoid legal challenges

Five years into California implementing the most sweeping change to state water law in a century, the first lawsuits are hitting the courts.

Christina Babbitt

Environmental Defense Fund

Email: cbabbitt@edf.org

Christina Babbitt manages the California Groundwater Program at Environmental Defense Fund where she works to advance and scale replicable groundwater sustainability pilot projects across California's Central Valley. Christina holds a Ph.D in natural resources from the University of Nebraska, Lincoln.

Valerie C. Kincaid

Partner, O'Laughlin & Paris, LLP

Valerie provides counsel to public agencies primarily on the regulation of groundwater and surface water, often with regard to water quality control planning, CEQA and SGMA compliance. Valerie holds a bachelor's degree from Colgate University and a JD from American University.

Five years into California implementing the most sweeping change to state water law in a century, the first lawsuits are hitting the courts.

Gov. Jerry Brown signed the Sustainable Groundwater Management Act, also known as SGMA (pronounced “sigma”), into law in 2014, during the state’s last deep drought, to address decades of groundwater overpumping. The legislation required the state to identify regions with overdrafted groundwater supplies and to create new agencies in those regions responsible for developing plans to balance groundwater supply and demand within 20 years. The first round of plans from the most critically overdrafted areas were submitted in January of this year, and are currently under review by the state.

One of the biggest challenges to implementing SGMA hovers around this two-part question: Who gets to pump groundwater and how much do they get to pump? Or, put another way, who must cut their groundwater use and by how much?

As local groundwater agencies try to answer this difficult question on how to develop allocations, they face one major legal constraint: They can’t change groundwater rights.

Consequently, the path forward for many groundwater agencies is riddled with legal complexities and questions around equity that shouldn’t be ignored.

To provide more clarity to groundwater agencies, we teamed up with two other leading water attorneys — Eric Garner and Russ McGlothlin — and University of Virginia law professor Leon Szeptycki on an article titled “The Sustainable Groundwater Management Act and the Common Law of Groundwater Rights — Finding a Consistent Path Forward for Groundwater Allocation.”

In the same week that our article was published in the UCLA Journal of Environmental Law and Policy, two groundwater users in the Indian Wells Valley Subbasin filed separate lawsuits challenging the region’s groundwater sustainability plan. The suits argue that the plan unlawfully determined the water rights of the beneficial users of groundwater and challenge new fees imposed by the Indian Wells Valley Groundwater Authority.

Agricultural water use in Indian Wells Valley, located about 120 miles northeast of Bakersfield, increased from 8,500 acre-feet in 2000 to 13,100 acre-feet in 2015. Under a baseline scenario with no action, the subbasin projects total groundwater pumping to reach 34,900 acre-feet this year, but the average annual groundwater recharge rate is only 7,650 acre-feet.

In our article, we identified two major steps groundwater agencies can take to minimize legal risks, which we realize are easier said than done. First, agencies should allocate groundwater consistent with the principles of water rights, and consider using a hybrid model to divide the groundwater pie to best address all needs. Second, agencies should encourage and facilitate negotiations to achieve consensus and reduce potential opponents.

Groundwater sustainability agencies across the state have considered at least four ways to divide groundwater: by gross acreage of land; net irrigated acreage of land (whether irrigated by groundwater or surface water); historic or current pumping levels; and some hybrid of these approaches that also considers other broad economic or equity principles.

Our article concludes any model based on a single factor has legal vulnerabilities and is more likely to create aggrieved landowners disadvantaged by the one-factor approach.

Instead, a hybrid allocation model that integrates multiple factors and reflects relevant legal principles is a stronger solution that more likely aligns with the common law and provides a framework for negotiations. Potential factors include historic pumping, investments in groundwater irrigation, reliance on groundwater, water conservation efforts and impact on sustainability.

When deciding how to divide limited groundwater supplies among users, groundwater agencies are required by SGMA to consider the beneficial uses of wetlands, streamflow and other groundwater-dependent ecosystems, as well as disadvantaged communities that often depend on declining or contaminated aquifers. This is the first time California law explicitly requires local groundwater agencies to achieve sustainability while considering ecosystems and disadvantaged communities, but there is very limited legal guidance on addressing these needs.

The Mojave Basin adjudication provides some guidance, by setting groundwater level standards along the Mojave River to meet the water needs of endangered and other species and riparian habitat. When groundwater level standards are not met, mitigation such as purchasing water, constructing wells or completing projects proposed by the California Department of Fish and Wildlife is required.

Another case, the Main San Gabriel adjudication, allows a watermaster to set water flow levels through local agreements.

California became the first state to legislatively recognize the human right to water through a law signed in 2012. To help ensure the human right to water, groundwater agencies can evaluate projects that protect shallow wells serving disadvantages communities, including connecting to suppliers with deeper wells or even deepening wells where appropriate.

Given all the competing groundwater uses and needs, it’s crucial that agencies encourage and facilitate broad dialogue across stakeholder groups to explore opportunities for compromise and consensus to minimize legal challenges. If disputes go to court, such efforts may reduce the number of opposing parties and contested issues, expediting the process and strengthening the groundwater agency’s legal position.

The vast majority of water users and their lawyers know that water litigation is expensive, lengthy and can have uncertain outcomes. State lawmakers passed legislation to streamline adjudication actions and ensure basins continue implementing their sustainability plans during litigation.

These new rules recognize that making our groundwater supplies sustainable is too important to our state’s future to be sidetracked by decades-long courtroom battles. 

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