Will California Mandate Sustainable Groundwater Management?

Just over a century ago, in response to excessive claims to limited surface water, California voters approved the Water Commission Act of 1913 to regulate surface water rights. The act did not regulate groundwater. As a consequence, California does not apply statewide regulation of groundwater as do many western states. Rather, groundwater is managed by local government or court order, if managed at all. In many areas, this oversight is performed well, but there are also many areas where management is lacking or insufficient. This may soon change.

Now, in California’s second year of a blistering drought, which has exacerbated groundwater overdraft in many basins, there is a concerted push to enact new law to ensure that groundwater is responsibly managed throughout the state. This effort appears to have bipartisan support, at least at a conceptual level. Further, several significant groundwater stakeholders that previously opposed statewide regulatory standards are now promoting some form of legislation to fill the void where management is lacking. In other words, there is a consensus that no management is no longer acceptable.

Two bills are presently pending—SB 1168 (Pavley) and AB 1739 (Dickinson)—and the Brown administration recently released proposed language as well. Both

Senator Fran Pavley

Senator Fran Pavley

bills were substantially amended on June 17th. The amendments to AB 1739 include text developed by a working committee convened by the Association of California Water Agencies (ACWA), consistent with a policy paper that ACWA released this past spring. Policy recommendations from the California Water Foundation were incorporated into SB 1168. Senator Pavley and Assembly Member Dickinson have coauthored one another’s bills and it is anticipated that the two bills will be further reconciled.

There are common themes among the various proposals. All would require the development and implementation of sustainable groundwater management plans in medium- and high-priority basins presently lacking management to avoid systemic overdraft and its resulting adverse consequences. Likewise, each of the proposals would provide new authority to local groundwater management agencies. For example, both bills would authorize a groundwater management agency to require registration of wells and reporting of pumping; impose regulatory fees to fund management and replenishment; and where necessary, establish quantified pumping allocations that could be transferred among groundwater users. Finally, all of the proposals provide for a “backstop” of state intervention in the event local stakeholders fail to enact sustainable groundwater management plans. However, there are differences among the proposals as to how such a state backstop might be employed.

Brownstein Hyatt Farber Schreck is one of a small number of water law professionals participating in the ACWA committee tasked with developing ACWA’s recommended legislation. Additionally, Brownstein’s lobby team is closely monitoring legislative developments. Our goal in both arenas is to apply our expertise and influence in a manner that ensures that any new legislation is consistent with the reasonable goals and expectations of our clients and groundwater users throughout the state.

Although statewide legislation is necessary, state management is generally not. Groundwater management should remain local to the extent feasible. Persistent lack of effective management may be cause for the state to take action to ensure that a groundwater management plan is properly developed. However, management by the State Water Resources Control Board or another state agency should be a last resort, and local authority should be reestablished once locals are ready and willing to manage to attain sustainability goals.

It is also important to ensure that the elements of a groundwater management plan, particularly the imposition of pumping fees or the creation of administrative groundwaterpumping allocations, are adopted and administered consistently with underlying water rights. While groundwater rights holders cannot reasonably expect pumping to remain free or unlimited, they can reasonably expect that management will conform to California’s system of water rights, which has developed over 100 years and pursuant to which groundwater users have invested in the resource.

Finally, several of the groundwater reform proposals include a goal of streamlining groundwater adjudications. In some circumstances, basin adjudications are necessary to resolve conflicts concerning groundwater rights or management approaches. Additionally, judicial resolution provides the greatest legal certainty and respect for water rights. Roughly two dozen groundwater adjudications have been completed in California, and these have generally achieved comprehensive and sustainable groundwater management. Unfortunately, as a result of a lack of judicial procedures specifically tailored to the complexities of groundwater adjudications, they often take too long and cost too much. If adequate due process is afforded, a streamlined process to more efficiently complete groundwater adjudications could be highly beneficial to management efforts.

There will be significant negotiation and legislative revisions in the coming months. Brownstein will remain engaged and will provide you with periodic updates as the legislation progresses. We strongly recommend that each of our clients work with a Brownstein representative to obtain a detailed review of the legislation as it relates to and may impact your current and future business operations. For the most current information on this topic please visit our California Groundwater website at: http://www.bhfs.com/CaliforniaGroundwater.

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Considered among the nation’s premier water law practice, Brownstein’s Water Group boasts unparalleled expertise in every aspect of water rights, supply, use, distribution and policy. Our Water Group represents both public and private water producers, suppliers and providers, including municipalities, wholesale and retail water agencies, public utilities, industrial users, real estate and land developers, vineyards, ranchers, significant land owners and various water-related public policy organizations.

Brownstein Hyatt Farber Schreck, LLP’s California Water Group

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