California is not new to droughts. The four-year period between fall 2011 and fall 2015 was the driest since recordkeeping began.1 Governor Brown declared a statewide drought emergency in January 2014 and more than $3 billion was allocated to provide drought relief.2 The pattern of diminishing rainfalls has caused surface water supplies to fall dramatically, driving the state to look elsewhere to meet its water needs. This has led to a dramatic increase in the demand for groundwater throughout the state and shone a light on the significance of groundwater’s role in sustaining the local population and economy. In 2014, California became the last state in the United States to enforce the regulation of groundwater. This culminated in the enactment of the Sustainable Groundwater Management Act (SGMA).3 Prior to SGMA, battles over groundwater rights had played out in court-supervised negotiation and settlement proceedings.4 And while voluntary groundwater regulation programs existed, strict management protocols were not required.5 As a result, the impact of these efforts were limited, and they ultimately failed to tackle the crisis of over-drafted groundwater basins on a statewide level.6
Primarily, SGMA provides a framework for sustainable groundwater management led by local authorities.7 SGMA calls for the identification of groundwater basins that are experiencing medium or high water-stress conditions, and then, requests that local agencies step in to mitigate the water-level declines, quality reductions, and more.8 Specifically, these local agencies, called groundwater sustainability agencies (GSAs), are charged with developing and implementing Groundwater Sustainability Plans (GSPs) for managing and using groundwater in those basins without incurring further degradation.9 This was done in recognition that groundwater is most effectively managed at the local level. By placing decision-making power in the hands of local agencies as opposed to adopting a one-size-fits-all policy for the whole state, lawmakers hope that those who will be most affected by these policies will be less resistant to change. This is especially true since lawmakers believe that GSAs will have more accurate and up-to-date information on local conditions. Ideally, policies should reflect these conditions on a case-by-case basis.
GSAs were given 6 years to create their sustainability plans, with the filing deadline on January 31st, 2020.10 While the SGMA empowers GSAs with the authority to set and enforce pumping allocations, permit transfers of allocations, and assess pumping feeds, the state’s common law system for water rights still stands.11 This means, if someone was dissatisfied with the way GSAs have chosen to allocate or restrict water use, the complaints will still be heard in courts under the traditional groundwater rights framework.12 Unlike a set of enumerated laws, the law of groundwater rights derive from a relatively small number of California Supreme Court cases. Accordingly, courts hearing the claims will need to be particularly careful in balancing long-established water law principles against new regulations imposed by GSAs.
One overriding concern among California landowners is SGMA’s primary strategy for reducing pumping: setting a limit on the quantity of water that can be retrieved within a single basin to allocate available groundwater among users in a more efficient manner.13 For decades, landowners whose properties were above a groundwater basin have had the right to pump water from that basin and use it on their land. In fact, courts consider these rights to be a part of the owner’s real property.14
Are the GSAs and common law water rights bound to conflict? Not necessarily. One can look to the roles of reasonable use and equity in allocating groundwater. One of the primary limitations on all water rights in California is that the right must be exercised reasonably and put to beneficial use, as required by Article X, section 2 of the state constitution.15 In addition, a constant theme in adjudicating water rights involves the court balancing equity, meaning that judges have broad discretion in how a fair and just solution ought to be worked out given the facts of a case. For instance, in City of Pasadena v. City of Alhambra, the court looked at historical pumping records and allocated water rights accordingly.16 In City of Los Angeles v. City of San Fernando, the court changed course and considered additional factors, such as how the amounts used might benefit the party over a fixed continuous period.17 Later in City of Barstow v. Mojave Water Agency, the court declined to follow the equitable apportionment outlined in previous cases, and instead focused on making water allocations that adequately considered and reflected priorities of a basin.18 In other words, application of equitable principles to pumping allocations were malleable to the needs and interests of the parties.
The ambiguity as to how reasonableness plays out in each case might not necessarily be a bad thing. That is, the degree of flexibility in applying the reasonableness mandate should allow GSAs to formulate water allocation plans that take into account all kinds of factors, particularly, factors that they know to be important to local stakeholders. One of the key motivators for decentralizing groundwater management is the idea that local agencies will be more responsive to local needs. GSAs, more than any state department, should be informed regarding local preferences and priorities. And even in the case of litigation, GSAs will stand a better chance of sustaining their policies in court when they can tell a coherent story of reasonable use. For example, the story could be told from the perspective of competing beneficial uses, or low priority vs. high priority users. Of course, the story will vary with the conditions of each water basin.
At the end of the day, extensive dialogue should be encouraged across all stakeholders to bring about compromises ahead of any potential lawsuits. But even if GSAs will not be able to avoid litigation altogether, trials will likely not severely impede their groundwater management efforts due to the accepted nuances in this area of law.
*Carly Yu is a Junior Editor with MJEAL. They call both Shanghai and New York home and graduated from Carleton College majoring in Philosophy and Environmental Studies. They can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
1 See, California’s Latest Drought https://www.ppic.org/publication/californias-latest-drought/
3 See, SGMA California: The Comprehensive Guide for Agriculture and Land Professionals https://aquaoso.com/resources/sgma-california/
7 See, Understanding the Sustainable Groundwater Management Act https://benitolink.com/understanding-the-sustainable-groundwater-management-act/
9 See, Sustainable Groundwater Management https://ca.water.usgs.gov/sustainable-groundwater-management/
10 See, SGMA California: The Comprehensive Guide for Agriculture and Land Professionals, supra.
11 Cal. Water Code §§ 10726.2–10726.4, 10730 (2020).
12 Cal. Water Code § 10720.5(b) (2020).
13 See, Christina Babbitt et al., Envtl. Def. Fund, Groundwater Pumping Allocations under California’s Sustainable Groundwater Management Act: Considerations for Groundwater Sustainability Agencies1(2018)https://www.edf.org/sites/default/files/documents/edf_california_sgma_allocations.pdf
15 Cal. Const. art. X, § 2.
16 City of Pasadena v. City of Alhambra, 207 P.2d 17, 32 (Cal. 1949).
17 City of Los Angeles v. City of San Fernando, 537 P.2d 1250, 1298 (Cal. 1975).
18 City of Barstow v. Mojave Water Agency, 5 P.3d 853, 862 (Cal. 2000).