In the past 30 years, perhaps no legislative effort to bolster the state’s water policy has received as much attention as the management of groundwater. This effort lead to the expansion of water district powers, the creation of special act districts with unique powers, the authorization of voluntary plans and finally culminated in the Sustainable Groundwater Management Act (SGMA) and its trailing legislation.
Now, for the first time in California, SGMA is promising a uniform standard of sustainable management to be applied locally.
Although the well-managed and adjudicated basins within Southern California had long established limits on the extraction of groundwater to safe quantities, the track record elsewhere in the state was a bit spotty. Ultimately, the acknowledged drought and regulatory induced shortages of surface water supplies lead farmers and cities to pursue the most readily available cover. In many cases, the most readily available supply to cover was groundwater.
The run on groundwater in the Central Valley gained national attention between 2010-2014. As a result, the desire to protect the environment and existing beneficial uses against unreasonable and unsustainable rates of depletion converged with anti-growth forces and combined with sufficient political inertia to finally over came historical opposition to enforceable limits on cumulative extractions.
Now, for the first time in California, SGMA is promising a uniform standard of sustainable management to be applied locally. At its core SGMA seeks the need to address the imbalance of supply and demand through a regulatory structure that can manage, allocate and in many cases restrict the withdrawal of groundwater to sustainable quantities in identified basins.
Each groundwater basin designated high and medium priority must have a Sustainable Groundwater Management Plan (“GSP”) by 2020. The initial step is to designate a local agency to develop such a plan by June 30 of this year. Across the State of California the race is now well underway to designate the local agency for each groundwater basin that will be primarily responsible for implementing SGMA’s management objectives.
In adopting SGMA, the legislature clearly states that it was its intention to “respect overlying and other proprietary rights to groundwater…” However, these proprietary rights, whatever they may be, are subject to the risk of curtailment where there is no temporary surplus and safe yield is exceeded. Precisely how and when curtailment might occur is exactly the kind of thing that engenders anxiety and in some cases perhaps justified paranoia by stakeholders. The more discretion that is reserved to future management decisions regarding the development of a GSP, the greater the concern there is among those that will be governed for who specifically will be doing the governing. While foundational elements of a GSP already have been articulated by the Department of Water Resources, skirmish lines are now being drawn over the age-old management question of who shall govern and how?
At the same time there is deep concern among stakeholders over the potential regulatory stick that may be wielded by local agencies, there is an opportunity for more progressive management and innovation.
Six appellate opinions in related cases decided last month concerning the Cadiz Project in Southern California (collectively “Cadiz cases”) suggest that future flexibility and discretion in the development of GSP may not be all bad.
Although the Cadiz Cases arise under a County’s management of groundwater under local ordinance, collectively the Court’s opinions embrace the exercise of local discretion and flexibility. “The clear legislative and regulatory policy in California is that the management of groundwater is a matter reserved to the discretion of the local governmental bodies and agencies,” noted one opinion. A groundwater management plan or strategy will be upheld against challenge under an arbitrary and capricious standard, noted another.
This is not to say that the decision about which entity will wield the governance authority is not important or in some instances critical. Nor do the cases directly address a host of questions that will arise from the development of qualifying plans in the march towards sustainability, not the least of which are the methodologies for apportioning supplies and the environmental and socio-economic consequences of fallowing vast acreage in places where demand greatly exceeds available supply.
At the same time, the Cadiz Cases do stand for the proposition that flexibility in management strategies can be harmonized with common law. This underscores that there may be opportunities to better manage groundwater basins consistent with the State Constitutional directive to maximize the reasonable and beneficial use of groundwater. Plans that offer carrots for improved efficiencies, local marketing and opportunistic augmentation are possible, limited only by our willingness to embrace the challenge of innovation and perhaps not the Courts.
Ed’s Note: Scott Slater is a shareholder at Brownstein Hyatt Farber Schreck, based in the Santa Barbara office.