WESTERN GROUNDWATER CONGRESS: Dispute Resolution Processes and Multi-Agency Groundwater Management

At the Western Groundwater Congress held in September of 2020, Dr. William Blomquist gave the following presentation on a study done with colleagues from other institutions that focused on the multi-agency groundwater sustainability agencies that have been formed under SGMA and to what extent their multi-agency agreements included dispute resolution provisions.

In 2014, the state of California enacted the Sustainable Groundwater Management Act, which mandated that local Groundwater Sustainability Agencies (GSAs) be formed for all high and medium priority basins in the state.  Over 260 GSAs in over 140 basins were formed by the deadline.  Those GSAs then are required to develop and implement Groundwater Sustainability Plans (GSPs) for their basin.

When forming the GSAs, some of the basins chose to form a single Groundwater Sustainability Agency and to develop a single Groundwater Sustainability Plan; other basins chose to form multiple GSAs that are either working on developing a single Groundwater Sustainability Plan or developing several Groundwater Sustainability Plans along with a single coordination agreement that outlines how the multiple plans will work together.  

Of the new GSAs, 74 of them are entities that consist of more than one GSA established under the terms of either a Joint Powers Authority or a Memorandum of Agreement.  The researchers analyzed those 74 agreements, noticing that there were differences in the dispute resolution provisions.  That preliminary analysis was published as a Water in the West Policy Brief from Stanford University.  Over the last year, they have been doing a more thorough analysis of that database of 74 agreements which is the subject of this presentation as well as a future journal article.

Broadly speaking, Dr. Blomquist noted that this is not just a water issue; inter-organizational arrangements such as what these GSAs have are ubiquitous in the private and public sectors as well as in the many cross-sector partnerships have been formed to get things done through inter-organizational coordination. 

Inter-organizational coordination is critical and for SGMA implementation, it’s especially critical,” said Dr. Blomquist.  “Not only do these multiagency GSAs have to figure out how to coordinate their activities, but for the basins that have multiple GSAs in them, those GSAs also have to coordinate either to bring their groundwater sustainability plans into alignment or to collaborate on a single groundwater sustainability plan for the basin.  So we have both multi-GSA basins and we have multi-agency GSAs, both of them present these inter-organizational coordination challenges.”

Interorganizational conflict is always a possibility and according to some of the literature on inter-organizational relationships, the greater the interdependence or the more tightly two organizations are bound together, the more likely conflicts are to arise, he said. 

Certainly something like collaborating on GSP development and then collaborating on GSP implementation seemed to us to be examples of pretty high levels of interdependence and therefore a really high potential for conflict,” he said. 

Resorting to litigation is certainly common, particularly in California water, although not necessarily desirable as it takes a lot of time and money.  However, there are alternative dispute resolution processes that legal professionals and other organizational consultants advocate because they are typically less time-consuming and less expensive than litigation. 

Those alternative dispute resolution processes range from negotiation and mediation which are less formal and typically less expensive but not necessarily binding, to the binding processes such as arbitration and litigation, which tend to be more elaborate, more detailed, more time-consuming, and also likely to be expensive. 

They then developed the research questions:

  • First, were dispute resolution processes provided for at all, and if so how? 
  • And if so, why?  And if not why?  In other words, why did they do what they did?

They focused on:

  • Inclusion (was a dispute resolution provision in their agreement)
  • Specificity (how detailed was it?)
  • Salience (how important did it seem to be to the parties? Was it a top?ic of discussion?)

The findings

What they found was that 64% of the agreements contained some language regarding how to handle disputes, and a little over a third did not. 

Specificity was somewhat more complicated.  The chart on the left side of the chart on the right shows the components that they considered in evaluating the dispute language of the 47 agreements that did include such provisions:  Did they identify what kinds of disputes can be taken into the dispute resolution procedure, who can invoke, who will pay, are there timelines specified and so forth? 

Those characteristics than were assigned a number on the specificity scale from 1 to 5, with 1 being no details other than some language in the agreement saying they will work to resolve disputes but no specificity about who, how, in what period of time, and other steps.  On the other end, an agreement might be coded as 5 because it had all the details such as who, how, who pays, how long can it take, and other steps. 

Of the 47 agreements that had dispute resolution processes, the researchers took a closer look at what factors might affect or influence the two dependent variables of inclusion and specificity. 

Besides research literature on dispute resolution, there also research literature on inter-organizational conflict and inter-organizational relationships, so from that research literature as well as the earlier analysis, they began to focus on factors such as the likelihood of conflict or whether the parties anticipate conflict, whether they have prior experience working together or prior experience of conflict.  They also considered factors such as organizational capacity or the sense that more specific dispute resolution language might be a function of factors such as agency size or budgets.  They developed a set of indicators of the characteristics to serve as the independent variables for analysis.

Because we have different kinds of variables here, some quantitative and scalable, some simply nominal yes/no like inclusion non-inclusion, we used different analytical methods to test the associations between the independent variables and the dependent variables,” said Dr. Blomquist.

The column on the left of the slide shows the kinds of independent variables that were tested for, most of which were fairly logical.  Does the likelihood of dispute resolution provisions come into play as there are more parties?  Did it make a difference whether there was a mix of water agencies as well as cities or counties in these multi-entity GSAs

They also considered the diversity of signatories as well by separately coding for inclusion of a city or inclusion of a county.  Are basins that have higher priority ratings on the CASGEM scale more likely to have dispute resolution provisions?

The results of the study found that most of those independent variables didn’t show any significant association with either inclusion of a dispute resolution clause or with the specificity of an inclusion clause.

That was a somewhat surprising result, given how much they seemed to align with the kind of conventional wisdom,” said Dr. Blomquist.  “There were a couple of our independent variables that were significantly associated with our dependent variables; however, inclusion, one of our dependent variables, turned out to be significantly associated with whether the agencies forming the GSA had used facilitator services during the formation process.  If they had, they were more likely to have included dispute resolution language.” 

The specificity of the 1 through 5 scale was significantly associated with whether the agreement also included language protecting the parties water rights, so where parties were concerned enough to put language into the agreement about water rights, they also were more likely to have included language about dispute resolution,” he said.

They then conducted interviews with 11 of the 74 multi-entity GSAs, looking for a mix of those GSAs with and without dispute resolution provisions, and other factors such as small or large capacity, budget, personnel, and different basin conditions. 

The interviews were important because it gave us an opportunity to ask about some of these more contextual kinds of variables such as history, anticipation of conflict, etc, that allowed us to get at some of our questions about specificity but also some of our questions about salience,” said Dr. Blomquist.  “From the interviews, we learned that in most cases, where there was dispute resolution language included in a GSA agreement, it came from the attorneys and not from any initiative from the parties.  In most cases, the parties didn’t discuss it, it just appeared in the agreement and whatever dispute resolution language there was, whether it was relatively general or relatively specific, wasn’t changed.  That once it appeared in the agreement, it pretty much stayed the same all the way through the final version of the agreement.  Most often the dispute resolution language was basically boilerplate language that the attorney or attorneys who drafted the agreement copied from other agreements.”

So they found that while inclusion and specificity varied across these GSA agreements, salience didn’t.  “Salience, or how important was dispute resolution language and how important providing for dispute resolution processes were, seemed to be low across the board,” said Dr. Blomquist. 

In conclusion …

It appears that even in the contentious litigious milieu of California water resource management, providing for dispute resolution appeared to not really be top of mind when multi-entity GSAs were formed,” he said.  “If there was dispute resolution language included, sometimes it was very vague, sometimes it was very specific, but when we probed that further, it turned out that whatever language was included was typically boilerplate and not discussed extensively if at all.”

So, here we are, with SGMA implementation.  Many basins are doing GSP development, and of course the critically overdrafted basins have already had to do that, and then everybody is going to go into implementation mode of their GSPs, either with multi-agency GSAs or multi-GSA basins in most places,” said Dr. Blomquist.  “So our concluding thought for today is, ‘let’s be careful out there.’

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