PANEL: The groundwater-surface water nexus & the State Water Resources Control Board
The passage of the Sustainable Groundwater Management Act enacted a program for statewide management of groundwater, defining new roles for state agencies, including the State Water Resources Control Board. In March of 2017, McGeorge School of Law held a symposium in honor the 50th anniversary of the State Water Resources Control Board explored the topic of “Integrating Water Quality & Quantity in the Golden State.”
In this panel presentation, Tina Cannon Leahy, Erik Ekdahl, Professor Richard Frank, and Eric Robinson discusses the Sustainable Groundwater Management Act, focusing in on SGMA’s effect on water rights, and the interactions of groundwater and surface water.
TINA CANNON LEAHY
The panel began with Tina Cannon Leahy giving a brief overview of groundwater. Groundwater is one of California’s most precious resources, comprising 40% of the water supply in a normal year, and up to 60% or more in a dry year. Although California is the largest user of groundwater in the nation, it was the last to adopt a statewide groundwater management act.
When California became a state in 1850, it passed an act adopting English Common Law as the rule of decision in all areas not covered by the U.S. Constitution, the California Constitution, or its newly passed state statutes, and groundwater fell under this by default.
“Because groundwater could only be claimed through ownership of land, overlyers believed it was subject to the common law doctrine that whoever owns the soil, it is theirs up to heaven and down to hell,” said Ms. Cannon Leahy. “They literally believed you could pump the hell out of the groundwater base and without regard to your neighbor. In 1903 there had been a drought, and in the seminal case of Katz v. Walkinshaw, the California Supreme Court did not agree. Justice Lucien Shaw ruled that overlyers had to share equally and that others could gain rights by prescription.”
In 1913, the passage of the California Water Commission Act created a permit system for appropriate water rights in California, administered by the Water Commission, which would later evolve into the State Water Board. “When they were creating that, the original act did not distinguish between groundwater and surface water,” said Ms. Cannon Leahy. “The late Professor Joe Sax in a wonderful law review article called, ‘We Don’t Do Groundwater, A Morsel of California Legal History,’ notes that the first amendment to that act actually stated that it clarified that it only applied to surface water, and in the words of Professor Sax, ‘swept away the governance of groundwater that may have happened at that point.’ It would not be the last near miss we would have with statewide groundwater regulation.”
Through the years, legal cases have evolved. In 1949 in the case of Pasadena versus the City of Alhambra, Pasadena, relying on authority in the Water Commission Act to determine groundwater rights, went to court to stop the City of Alhambra from pumping the over-drafted Raymond basin. Pasadena claimed that as an overlyer, it could continue pumping groundwater while Alhambra, as an appropriator, was subject to the first in time first in right doctrine and had to stop. California’s Supreme Court did not agree, finding that neither party had sought to enjoin the other from causing harm to the basin, and so each had obtained rights by prescription against the other. “In essence, this placed all parties on an equal footing with regard to priority, and they were all required to reduce pumping proportionally until the basin was at a level of safe yield,” she said. “And the court retained jurisdiction over the case. This really became the standard for many groundwater adjudications to come.”
The legislature continued to tackle groundwater. Ronald Robie and his boss, Carly Porter recognized there were some areas that were overdrafted, but they stopped short of recommending legislation. It would be in 1978 in response to another severe drought that Governor Jerry Brown in his first term established a commission to review California water rights law.
“This was another near miss for groundwater because in their final report, among other changes, they recommended a new law for statewide groundwater management that would be locally driven, but with a significant role for the State Water Board as a backstop, but that statute was not pursued,” said Ms. Cannon Leahy.
Fourteen years later, in 1992, AB 3030 by Jim Costa of Fresno was enacted, which called for local groundwater management with no requirements for sustainability. Ten years later, SB-1938 by Mike Machado of San Joaquin County would add to that by requiring certain plan components. “It was still voluntary with one exception, which Sunne McPeak likes to refer to the ‘carrot as big as a stick,’” she said. “If you did not do your voluntary groundwater management you were ineligible for state money for water plans and programs.”
During 2007 to 2009, there was another drought, and Governor Arnold Schwarzenegger convened a special legislative session to tackle water issues unresolved in the regular session. SB 6 by Darrell Steinberg was part of an ultimate five bill package that emerged that required regular and systematic local measurement of groundwater basin elevation. “When I was at the legislature people would say to me, ‘Why didn’t they require more?’ And I would respond, ‘It was a bill and it had the word groundwater in it.’ That alone was amazing,” Ms. Cannon Leahy said.
“Some people thought it was the camel’s nose under the tent for statewide groundwater regulation, and, well, it was,” she continued. “The California Statewide Groundwater Elevation Monitoring Program, or CASGEM at DWR is what that program became, and in the familiar approach, the requirements are voluntary, but locals are ineligible for state funding of water projects and programs if they fail to do so.”
In 2012, another severe drought begins, and Jerry Brown is governor for a historic third term. In January 2014, he declares a drought state of emergency, and relying on the State Water Board’s Waste and Unreasonable Use and Public Trust authorities, which Rick is going to talk about further, the governor includes in his newly released California Water Action Plan, directions for the State Board to step in where locals are unwilling or unable to manage their groundwater basins. “This sent shockwaves, I think, though the stakeholder community,” Ms. Cannon Leahy said.
“What created bigger shockwaves was when in his January budget he placed $1.9 million and ten positions for the State Water Board to actually do this,” she said. “The legislature, feeling this is a legislative matter, swung into action. In February of that same year Senator Pavley and Assembly Member Roger Dickinson both introduced bills that would later become the three bill package that is the Sustainable Groundwater Management Act (or SGMA). SGMA requires local groundwater management with the state backstop, similar to what was proposed by the California Water Commission all those years ago. In 2015 the legislature built on SGMA with Assembly Bill 1390 by Lewis Alejo, which streamlined groundwater adjudication procedures, and Senate Bill 226, also by Fran Pavley, which required groundwater adjudications in basins subject to SGMA to be consistent with SGMA.”
Erik Ekdahl is the Director of the State Water Board’s Office of Research, Planning, and Performance, which is the office that manages the board’s responsibilities under the Sustainable Groundwater Management Act, emergency conservation regulations and long term water efficiency efforts.
Mr. Ekdahl began by noting that he’s a geologist by training, so he would be giving a technical look at how we got to the legislation, focusing on what existing management approaches we had for groundwater, and how that really helped culminate in the passage of SGMA .
He said there were some external drivers and a managerial driver that led to groundwater management:
Population: He presented a slide showing the growth of California’s population in millions and pointing out the point in time when Oroville Dam was completed; it was 1968 and the state’s population was 18 million people. He noted that Oroville is significant because it was the last big component built for the State Water Project; while other projects have come online since then, Oroville Dam really marks the completion of California’s plumbing system. Since that time, the state has added 20 million people. “In terms of how much more water we need just to serve those 20 million people, an acre-foot of water is enough for between four and five people, so roughly we’ve hardened the demand in California just simply through population increases alone by about four to five million acre-feet,” he said.
Land use: There has been a tremendous expansion in terms of the urban area which is reflected in that population increase, but also in the acreage of irrigated agriculture, Mr. Ekdahl said. “There is a demand hardening associated with that as well, particularly as you convert from perennial crops like tomatoes to things like almonds and pistachios and walnuts where you have to water those trees all the time, every year, no matter what. You can’t take a break from your irrigation schedule, because otherwise those trees will die.”
The layering on of the population increase, the hardening demand for water in both urban and agricultural use, and the drought causing a dramatic decrease in the overall water supply, the consequence was that many had to rely on groundwater far more than a normal year.
“Tina mentioned that California uses about 40% of its supply from groundwater on an average year, maybe 60% during drought, but during this last drought, it was probably much higher than that,” Mr. Ekdahl said. “In parts of California, particularly the central coast area of California, under a normal year it’s 80% reliant on groundwater. Some basins are 100% relying on groundwater and continue to be so.”
The consequence for that was a tremendous lowering in groundwater levels. “There are places in the southern San Joaquin Valley where groundwater elevations have dropped by over 600 feet in the last 20 years,” he said. “There’s rapid subsidence right now in the Central Valley. There are places that are sinking at the rate of 18 inches per year. It somewhat coincides directly with where there may be high speed trains in the future; it’s hard to route a high speed train when your baseline keeps dropping. So there are really consequences to this. It’s affecting the aqueduct, there are already places where the Department of Water Resources is having to reconfigure how they manage the flow of the aqueduct, because the land around it is sinking so rapidly.”
Over the last hundred years, working within California’s existing water law structure, a series of approaches were developed to manage groundwater. They include overlying rights, adjudications, special act districts, subterranean streams, and SGMA. Mr. Ekdahl then explained each of these in detail.
Typically, groundwater in California is managed through an overlying right. To put it simply, there is a group of landowners in a basin; they get a share of that basin’s safe yield, which is basically how much can be pumped from a basin compared to how much is recharged in a given year.
“We don’t really know how many overlying right holders we have in California; it’s probably over a million,” Mr. Ekdahl said. “We guess that we have at least 800,000 wells in the State of California, perhaps as many as two million. The subtext there is we actually don’t know where the wells are located and we don’t know how many of them there are. There is a requirement that a new well going in has to complete a well log report. During periods in California’s history that was more or less enforced, and some drillers don’t really do it, so we don’t really know. They’re all in paper records, there’s no electronic format, although they’re kind of working towards that now.”
“The other main problem is that this has never really been enforced, particularly the component of the basin’s safe yield,” he continued. “Most basins don’t know what the safe yield is, and so it’s kind of morphed into this attitude where if I have a well, I can sink it and pump as much as I want, ignoring this whole part about how you’re only supposed to pump what’s your safe yield and what your actual overlying right is. And there’s no permitting system in place.”
In a couple of places across California, the fight over what the basin’s actual safe yield was combined with very clear cases of overdraft that did harm to other overlying pumpers of groundwater, so the courts have stepped in and adjudicated the basin. “That basically means that the court has stepped in and directly spelled out how much water you can pull out; it has assigned rights and allocations to different parties within the basin.”
The Sustainable Groundwater Management Act legislation specifically exempts 26 existing adjudications, as well as three that are pending; they are predominantly located in Southern California. Mr. Ekdahl noted that the Owens Valley is technically not an adjudication, but it’s treated as one in SGMA because it is subject to a long-term agreement between L.A. DWP and Inyo County.
Special act districts
There are a number of special act districts, which are places where the legislature has essentially provided additional authorities under what might normally be found in statute to a group of public agencies or a certain set of groups. There are fifteen of them named in California and two formed by legislation last year specifically to create groundwater sustainability agencies for SGMA. Special act district are distributed throughout the state of California.
Mr. Ekdahl said the authorities assigned to special act districts vary widely. “Some of these actually don’t actually function,” he said. “They’re special act districts in names only; they’ve never actually convened anything. Others have pretty broad authority to manage every aspect of groundwater management, specifically Orange County and Santa Clara Valley water districts, which are probably two of the best managed groundwater basins in the state of California.”
Subterranean streams are a legal creation by the state of California. They’re based on a four part test that there’s a subsurface channel, there’s impermeable bed and banks, the course of the channel can be easily determined, and the water must be flowing in the channel.
“Realistically, scientifically, there is no such thing as a subterranean stream,” acknowledged Mr. Ekdahl. “They are basically places where groundwater and surface water are so closely connected that when you pump from groundwater, it’s almost a one to one relationship. You can see the depletion in the surface water, in the stream, almost right away. There are really coarse and permeable gravels, and so there’s this connection where the state has essentially found that pumping in this certain area really amounts to a depletion of the surface water flow. So those are useful, legally, even though, as a geologist, it kind of really hurts to see them ever mentioned.”
Sustainable Groundwater Management Act
This brings us to SGMA. “We have this structure where we’ve had these external drivers,” he said. “We’ve had immense population increase. If you think ahead to the future, if you think ahead to 2050 where California’s population is estimated to be 60 million people, that’s another demand hardening of another four to five million acre feet per year. Where is that water going to come from?”
SGMA creates a structure in which that water, if it comes from groundwater, has to be sustainably managed, he said. Extractions in groundwater basin over the next 20 years have to get to a place where what goes in, roughly, equally what comes out. It requires the establishment of a Groundwater Sustainability Agency, which will be directly responsible for developing plans that will manage groundwater extractions in that basin.
“The problem is right now we’re heading towards a scenario, even in these 127 basins, where we estimate that there’s probably going to be between 300 and 400 GSAs, each one jockeying for their own slice of the pie, each one trying to establish themselves in a scenario where they don’t lose out in the end,” he said.
SGMA is also a grand experiment, Mr. Ekdahl said. “If you think about a lot of the water quality aspects that the board works with, there’s a top down approach. The state comes in; we set a public health goal for a constituent. We then develop a maximum contaminant level for drinking water, and then we promulgate that rule through our clean- up programs, our drinking water programs, and we set the standard that everyone has to meet.”
“In SGMA, that whole model is really flipped,” he continued. “We have a scenario where the locals are directly responsible for defining what is unreasonable in that basin. They propose that to the state and say, ‘Here’s where we think we’re okay, where there’s not one of these undesirable results – there’s no overdraft, stream water depletion, water quality degradation, subsidence, or seawater intrusion. They bring that to the state and the state says, more or less, we agree or we disagree. If the state disagrees, then the state is responsible for stepping in and coming up with a management plan that does work until the locals can come up with a different plan, or come up with a new approach.”
Mr. Ekdahl then ended by quoting Senator Fran Pavley: ‘California will no longer be the only western state that does not manage its groundwater. The cost of doing nothing here is the biggest economic gamble.’
“There will be costs associate with SGMA,” he said. “Each plan we estimate is going to cost between one and three million dollars, potentially more where there are a lot of problems. What are the costs going to be in terms of economic output for those basins, and how realistic is it that there will not be significant reductions in agricultural output? Because in many basins in California, not all by any means but in many, the scenario of overdraft is so severe that the only way that they can come into sustainability is by reducing groundwater extraction.”
PROFESSOR RICHARD FRANK
Richard Frank is Professor of Environmental Practice and Director of the California Environmental Law and Policy Center at UC Davis; he teaches California courses in the environment law curriculum; prior to that, he practiced law with federal and state agencies for 32 years.
Professor Richard Frank began by saying that with SGMA, there is both good news and bad news. “The good news is that after 164 years California finally joined every other western state in adopting some form of state supervised groundwater management,” he said. “California, which prides itself in so many other of environmental and natural resources law as being a leader, was an absolute state laggard when it came to groundwater law and policy, when it came to groundwater.”
The key overarching principal of SGMA can’t be underestimated or ignored, he said. “The idea of sustainability and promoting groundwater aquifers or groundwater resources in California that are sustainable over the long term – the principle of intergenerational equity or however you want to refer to it, it’s extremely important.”
Finally, for the first time, the law recognizes the connection between surface water and groundwater. “SGMA, for the first time, begins through several legislative findings to recognize that there often are inextricable links to surface water and groundwater, and that growing recognition of trying to bring the law of the groundwater more into the present along with the science and engineering of groundwater is a very welcome thing,” he said.
Mr. Frank acknowledged that it was an extraordinarily heavy political lift to get it done, and that it would not have happened but not for the multiyear drought that really brought into very sharp focus the great crisis that the state’s groundwater resources were facing.
With respect to the bad news for SGMA, Mr. Frank said the law perpetuates and in many ways increases a disconnect between the way California regulates surface water supplies and the way it prospectively is going to regulate and manage groundwater supplies.
“SGMA basically creates a bottom up process where local and regional entities will basically self-organize and will have the principal responsibility for developing groundwater sustainability plans and implementing those plans. The state has been relegated to a supervisory and more relevant for purposes of the water board, a backstop and secondary function. I think, in many ways, it’s an insufficient and unduly weak state role.”
Another key issue is the ‘lackadaisical’ schedule of implementation; given the threat involved, it’s a very languid period, he said. “The groundwater sustainability plans don’t have to be adopted by local agencies until 2020 for the most critically overdrafted ground basins, the others have until 2022,” he said. “Under the legislation, sustainability doesn’t have to be achieved for at least another 20 years after that, and no one can really enforce any perceived deficiencies for another five years after that. Given the critically overdrafted nature of many of our groundwater basins, that’s a real problem.”
“To compound that fact, a bandaid or a bridge to that future could have been made if SGMA included some sort of moratorium or limit on increased groundwater pumping in the interim while the legislation is being implemented, but that didn’t happen,” said Mr. Frank. “There’s no such provision. I daresay the last couple years of the drought a number of people were digging deeper wells and quicker wells in an effort to get it in under the wire.”
However, the single biggest deficiency is that there’s no requirement for groundwater extraction reporting by individual groundwater managers. “As a water rights official once said to me, you can’t manage what you don’t measure, and that’s really true,” Mr. Frank said. “So while these groundwater sustainability agencies certainly have the authority and the ability to impose a reporting requirement as part of their individual groundwater sustainability plans, there is no requirement that they do so.”
Both the Department of Water Resources and the State Water Board both have roles. “I think it’s fair to characterize DWR as the good cop with all the carrots and incentives and financial support for local government; the water board is the bad cop with the sticks, waiting in the closet or behind the curtain to come out if and when the local governments don’t hit their marks in terms of deadlines, or don’t do their job adequately.”
The State Water Board has the authority to intervene and take over the management of a groundwater basin if no groundwater sustainability agency is created by June of this year; if the groundwater sustainability agencies don’t adopt a groundwater sustainability plan by either 2020 for the most seriously overdrafted basins or by 2022, or if the groundwater sustainability plans that are adopted are deemed by the state to be legally inadequate.
Another oddity of SGMA is that the principal responsibility for determining the adequacy or inadequacy of a particular submitted groundwater sustainability plan rests not with the Water Board but with DWR, which is supposed to make the principal determination “in consultation” with the State Water Board, whatever that turns out to mean, Mr. Frank noted.
Finally, in those instances where the water board is allowed to move in and adopt an interim plan for affected groundwater basins that have resulted in a probationary status, the problem is if you look at that provision of SGMA, the process by which the board can take up that backstop role is almost as convoluted and complicated as a formal APA rule-making proceeding under California administrative law, he said. “I think that even after there’s a lack of a groundwater sustainability plan or one that is demonstrably deficient, you’re not going to see the State Board be able to actually engage, adopt, and begin implementing an interim plan for at least a couple of years after that, so it’s a real problem.”
However, there are other management and legal tools that the Water Board can use to deal with the crisis facing the state’s groundwater resources. Those include Article 10, Section 2 – the reasonable beneficial use provision in the constitution and the public trust doctrine. “A very important case involving the Russian River and surface water rights a few years ago, Light versus the Water Board, reiterated what I think a lot of us already knew to be true which was that those principles applied fully to all water rights in California, not just for those appropriative water rights for which the Water Board has a permit system,” he said.
The Water Board’s public trust authority was articulated and confirmed in the National Audubon Society – California Supreme Court’s 1983 decision, he said. “As part of the 2009 legislation that Tina mentioned, we now have an affirmative statutory recognition of the public trust doctrine and a reiteration of Article 10, Section 2, the longstanding constitutional principle of reasonable use, and that the public trust doctrine shall be the foundation of state water management policy,” he said. “Mono Lake makes it clear that the public trust doctrine applies to the board’s water rights authority. I daresay, a lot of us have believed for a long time that that authority extends to the state’s groundwater resources and the State Board’s authority, and, I would argue, affirmative obligation to manage resources.”
Mr. Frank then turned to discuss a pending lawsuit, The Environmental Law Foundation versus County of Siskiyou, noting in the interest of full disclosure that he’s one of the attorneys representing the plaintiffs. The lawsuit was brought to Sacramento Superior Court back in 2010 on behalf of the Environmental Law Foundation, an environmental group and the Pacific Coast Federation of Fishermen’s Association, initially against both the County of Siskiyou and the State Water Board. The lawsuit involves the Scott River, located in northwestern California, which is a tributary of the Klamath River. “It has a lot of attributes,” he said. “It’s a great recreational resource for recreational boating and fishing. It also has an important ecosystem function as it’s the basis for migratory salmon, hence the interest in the case of commercial fishermen capture salmon.”
“The problem is this is an area where it is undisputed in the litigation that the groundwater aquifer in the area of the Scott River and the surface waters of the Scott River are hydrologically connected, and that’s established and undisputed in the litigation,” Mr. Frank said. “It’s also undisputed that the Scott River, for California law purposes, is a navigable body of water. Our view was that the counties ministerial issuance of groundwater permits without any checking about the impact of groundwater extraction on the surface flows of the Scott River, which completely de-water the river in summer and fall months, has a deleterious impact on the stream. The county has an affirmative obligation to do something about that, and the Board does as well.”
“One can argue that misperceived the views of the Water Board or whether they changed their views over the course of the litigation, but the happy result, from our standpoint, is the Board rather quickly realigned itself with the petitioners in this case, leaving the county as the sole defendant,” he continued. “But the county expanded its defense by arguing not only that it had no obligation to do anything to address the groundwater impacts on the surface flows, but also argued that the Water Board lacked any jurisdiction whatsoever under the public trust doctrine or other authority to act in this instance.”
The case took a long time to be adjudicated in the Superior Court, which ultimately ruled in favor of the petitioners and the Water Board that the county had affirmative obligation to consider surface water flows and public trust principles in issuing these groundwater permits. “The County also lost its argument after SGMA was enacted that SGMA somehow superseded or displaced or preempted the public trust doctrine with respect to groundwater in the Scott River basin, despite the fact that SGMA itself in a no less than three or four places indicates that it is not the intent of the legislature to alter in any way the substantive groundwater law of California.”
The County has filed an appeal and the case is currently pending in the 3rd Appellate District. “We’ll see where the case goes, but I think that will have some influence and effect outside of the ambit of SGMA on future California groundwater law and policy.”
Eric Robinson, is a shareholder and manager of the Water Resources Practice Group at Kronick Moskovitz Tiedemann & Girard in Sacramento. His practice involves helping public and private clients negotiate and perform water transfers and groundwater banking transactions.
Eric Robinson said he had several main objectives in his presentation: The first is that the marriage of water quantity regulation with respect to the surface water rights system and water quality regulation, which is handled by the regional water quality control boards and the State Water Resources Control Board. “The parallel here is that we’ve had separate approaches to managing most surface water rights under a permit program administered by the water rights division of the State Water Resources Control Board that also extends to the subterranean streams that our geologist explained are an Alice in Wonderland sort of a fantasy thing,” he said. “Then we basically had a laissez faire approach to the management of groundwater resources with some exceptions in certain groundwater management districts, special districts like Orange County, or unadjudicated basins.”
“What I see now is that the Sustainable Groundwater Management Act is bringing together management of surface water resources from a quantity perspective, as well as groundwater resources. Because of this integration of surface water and groundwater quantity management, I also want to talk a little bit about some of the drivers on surface flows and how much surface flow should or should not be provided in the given stream or stream reach. Then I want to talk about when you have insufficient flows to meet all needs, how do you allocate these interconnected waters, and what are the principles that we have to do that? Then I want to talk about how the Sustainable Groundwater Management Act treats water rights, surface water rights as well as groundwater rights. Finally I want to wrap it up with groundwater adjudications.”
The marriage of managing surface water and groundwater comes in the provision of SGMA that details the content of the groundwater sustainability plans that have to be adopted in the 127 high and medium priority basins that are subject to SGMA. Basically the entire San Joaquin Valley is considered high or medium priority; some basins are in critical overdraft, which means those basins must adopt groundwater sustainability plans by 2020, which is two years earlier than other basins considered high or medium priority.
Groundwater sustainability plans must address the interconnected water issue or they won’t be deemed adequate by DWR and the state can step in and impose an interim plan. “What the plan has to do is it has to prevent, quote, ‘depletions of interconnected surface water that have significant adverse impacts on beneficial uses of surface water,’” Mr. Robinson said. “If a GSP doesn’t deal with that, then starting in the year 2025, the state board can step in and impose an interim plan to address that issue. So this is the marriage of regulating surface water and in stream flows, and groundwater.”
He then presented a slide to illustrate interrelated groundwater and surface water systems. The top left graphic shows a hydrologic scenario where the groundwater surface elevation (the water table) is so high that it is pushing water through the permeable sands and gravels into the stream; this is called a gaining stream. The graphic on the right shows is a circumstance where the water table has fallen and instead of the groundwater pushing into the stream, the water in the stream is leaking out into the groundwater system. The graphic on the bottom shows the same situation but it’s more extreme – the groundwater level has fallen to the point where it’s no longer in direct physical contact with the surface stream.
“For any given stream, or any given location or reach on a single stream, you could see any of these different scenarios at different points in the year as this is not a static scenario,” said Mr. Robinson. “In the winter and in the spring, the groundwater levels might be feeding the stream; in September-October, you might see the groundwater elevation fall, and it would be a losing stream. But when we talk about interrelated water supplies, this is the physical interaction.”
If the concern is regulating pumping to protect surface flows, what are drivers for surface flows and how much flow needs to be there? “Some of the obvious drivers are ones that come from environmental law, and that would be the Endangered Species Act, so if you have listed fish species in this stream, that’s going to get extra attention,” he said. “How much water do those listed fish species need in that stream? The same kind of considerations can be applied under the public trust doctrine. Then you have Fish and Game Code Section 5937 that says the owner of a dam has to bypass enough flow to keep fish below the dam in good condition. There are various groups that work to enforce this: the federal government, state regulators, or even citizen suits, like the Environmental Law Foundation.”
“One of the other beneficial use values in streams that you have to protect are consumptive uses of those in-stream flows,” Mr. Robinson continued. “You may have municipal water supplies, local domestic wells, and irrigation supplies, but there are also in stream uses of surface flows that need to be protected in connection with how we regulate groundwater use affecting those flows.”
Mr. Robinson noted that although the public trust doctrine was applied in 1983 against the City of Los Angeles, it does not mean what most people think when they come out of law school having taken water law. “One of the things that is important to understand is that public trust doctrine does not equal more water for non-consumptive in-stream values,” he said. “It very well might mean that in a given circumstance, but it does not compel the outcome – it compels a consideration and a balancing of consumptive use versus in stream flow values, and then a decision has to be made. The decision recognizes that the population and economy depend on vast quantities of water use that are unrelated to the in-stream value. So you have to recognize that consumptive use of surface flows is legitimate and necessary for society to operate.”
Mr. Robinson said that he thought that the Siskiyou County case discussed by Professor Frank is going to result in an appellate opinion that discusses whether the public trust doctrine applies to county decisions on whether to issue well drilling permits if production with the new well would affect the public trust values in the connected surface stream. “I don’t think that case has been developed in a way where you’re going to get a substantive content outcome on what pumping reductions might be needed to protect what kind of in stream flows in the Scott River, and so it will be a case that establishes a principle without actually coming to the final resolution on what’s required there.”
The Sustainable Groundwater Management Act prohibits significant and unreasonable depletion of surface flows, and it addresses groundwater dependent ecosystems that might be in riparian areas. “It’s going to create a forum or a focus on what kind of in stream flows are needed, because if you’re talking about regulating pumping and maybe cutting pumping, folks are going to care about why,” he said. “How much surface flow are we trying to maintain? And will these particular pumping reductions create that flow?”
So in looking at regulating pumping to protect surface flows, what do you do if pumping cuts are proposed? Or if pumping cuts aren’t proposed and you think they’re necessary? “The first thing that you’ll do is look at what kind of surface flows are needed,” Mr. Robinson said. “If you’re coming from an environmental advocacy perspective, is the consideration of groundwater management going to allow enough surface flow and how much surface flow is really needed? What resources are you trying to protect? What in-stream values are you trying to protect? You’re going to want to look at whether those are reasonable.”
Mr. Robinson posited the question of whether the regulation of pumping affecting the surface flow is reasonable. “If we’re thinking about restricting groundwater pumping to protect surface flows, it’s basically going to create a regulatory shortage where by regulation, it will create a shortage to the developed land uses ag or urban, that have been reliant on that groundwater pumping, so that’s a regulatory shortage,” he said.
He suggested there is a principled approach to dealing with the regulatory shortage. “It’s not just a free for all that you get to invent under the groundwater sustainability plan development process; you’re going to be able to have access to some principles that have been long established that should help you sort out how to allocate the pumping reductions or perhaps reductions in surface water use.”
Mr. Robinson pointed out that the Sustainable Groundwater Management Act contains multiple clauses that recognize that the law does not change groundwater rights and does not authorize a Groundwater Sustainability Agency to determine groundwater rights. However, there are different kinds of rights, he noted, such as land-based rights include riparian and overlying rights and use-based rights such as appropriative rights and prescriptive rights; there are rules for applying these.
“These are the principles that can be applied to allocate reductions in water use to achieve these outcomes,” he said. “If you have an overlyer versus an overlyer, you share. Overlyer versus riparian, you share. Overlyer or riparian versus an appropriator, then the land-based rights, the overlyer and the riparian, they win. If you have an appropriator versus an appropriator, then the earliest wins. This is the priority principle, first in time first in right.”
He noted there were a few curve balls, such as prescription. “Prescription was a device in groundwater law that was invented by courts to save junior urban economies from being wiped out in a groundwater adjudication, because under the normal rules, if the cities or the urban economies that used groundwater are exercising appropriative groundwater rights, those are junior overlying rights that are being exercised by the farmers. And so if you apply a strict priority system and there’s not enough groundwater, you could wipe out the city that’s relying on groundwater in order to save the farmers. So the courts invented prescription in order to even the playing field. Then the farmers pushed back and they got the self-help defense, and so that sort of cancels each other out.”
What must be done is to take this complicated set of shortage allocation rules and apply it in a hydrologic an a geologically complicated physical scenario. “It’s very challenging to do that, but these principles provide a very useful reference for allocating shortage where it’s necessary,” Mr. Robinson noted. “These groundwater sustainability plans, when they’re dealing with trying to achieve sustainable yield and as part of that trying to protect a certain amount of in stream flow values, they ought to be paying attention to those water allocation principles – the water right priority system. Because if the groundwater sustainability plan veers too far from those allocation principles and those priorities, the folks who feel like they’re getting shorted, either because they’re getting less water or because they’re paying too much cost to implement the solution for that particular sub-basin, they’re going to challenge the plan as inconsistent with water rights, which SGMA says have not been changed.”
Disgruntled water users can also initiate a groundwater adjudication. Mr. Robinson pointed out that no one has yet taken the new law out for a test drive, but that will likely occur in the upcoming years. “This is important because prior to this law, there was a possibility that water users could initiate a groundwater adjudication to create a sort of end run around the Sustainable Groundwater Management Act planning process, so if a particular group of users didn’t like the direction in which a groundwater sustainability agency’s development of its plan was headed, they could initiate a groundwater adjudication in order to create an alternative management approach.”
Mr. Robinson noted that this has happened in California in instances where existing institutions weren’t quite getting it right in terms of groundwater management, and adjudication was initiated in order to create a new institution to manage the basin. So in order to prevent this end run, the legislature enacted legislation that integrates SGMA with groundwater adjudications and creates a streamlined approach for prosecuting comprehensive groundwater rights adjudications.
“There is an express requirement that the court, in a groundwater adjudication, minimize interference with the development and implementation of the groundwater sustainability plan,” he said. “In a groundwater rights adjudication traditionally, the only parties would be water rights holders – overlying land owners, urban uses, and urban users. You wouldn’t have other interests at stake because they didn’t have property rights to be adjudicated. Now a groundwater sustainability agency can intervene, even if it’s not a water rights holder.”
“If there is litigation challenging the groundwater sustainability plan, this new statute says that that can be consolidated, that is, assigned to the same judge that is overseeing a groundwater rights adjudication, so you bring a challenge to the groundwater sustainability plan in front of the same judge who is also overseeing the groundwater rights adjudication,” he noted.
“Importantly, the Department of Water Resources, which conducts reviews on adequacy of groundwater sustainability plans, is also going to be in a position to conduct a review of the adequacy of a proposed adjudication judgment in the groundwater adjudication,” he said. “This has never happened before and this is significant. The filter that DWR is to apply in reviewing the adequacy of a proposed groundwater adjudication judgment is essentially going to be, does it accomplish sustainability in the same kind of way that a groundwater sustainability plan does? This is to prevent use of adjudication as an end run around the groundwater sustainability plan process.”
Finally, a judge is not allowed to enter judgment in a groundwater adjudication unless the judge can find that implementation of the judgment will not substantially impair sustainable groundwater management, he said. “So you really do have this integration of surface water and groundwater through the groundwater sustainability planning process, and then the integration at the end of SGMA implementation through this planning process. If a groundwater rights adjudication ends up being necessary for whatever local reasons happen – the groundwater sustainability plan planning process breaks down and so you need an adjudication to make clear who has got what and who should be bearing what burdens – then that gets integrated back into the groundwater sustainability planning process to this DWR review on the findings that the courts have to make.”
Mr. Robinson said that besides full employment for groundwater engineers and perhaps for water lawyers as well, he is optimistic that SGMA implementation is a realistic and durable approach to managing California’s groundwater system. “In my humble opinion, to suddenly have state-imposed dramatic cuts in groundwater pumping is alarmist, unnecessary and would not be durable,” he said. “If you allow the locals to try to develop their own physical solution to the problems in their sub-basin, using the threat of state intervention and pumping cuts from an interim plan as pressure to get the job done locally, I think you have a higher likelihood or having something that will be durable and will work over time. It will not be pretty, but this is complicated.”
Mr. Robinson said he doesn’t know any groundwater engineer that thinks that waiting until the year 2020 or ’22 and then trying to achieve sustainability over 20 years thereafter is lackadaisical. “Most people are afraid that the amount of work that has to be done is overwhelming and that that is a short period of time in which to accomplish these objectives,” he said. “So I commend the legislature for providing a reasonable amount of time to try to do something that is an incredibly heavy lift.”
For more from the McGeorge School of Law Symposium …
- Coverage of Justice Ronald B. Robie’s opening keynote speech: JUSTICE RONALD B. ROBIE: The State Water Resources Control Board: How it All Started
- Coverage of Felicia Marcus’s lunchtime keynote speech: FELICIA MARCUS on the State Water Board 50th anniversary: ’50 is the new 30’
- Coverage of panel discussion: Water Quality & Allocation: State Water Board Overview & the Delta Water Quality Control Plan
- For a brief recap and to view videos of the symposium, click here.
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