J.D. Candidate (2015), University of San Francisco School of Law
Sept. 12, 2014
On August 29, 2014, the California Legislature approved a package of bills aimed at managing groundwater extraction. For 100 years, the Legislature had declined to regulate groundwater extraction, and courts have refused to expand local or state agency control over the practice. Currently, California is the only Western state without any form of groundwater regulation aside from the costly and time-consuming process of groundwater adjudication. If Governor Jerry Brown signs the trio of bills as expected, California would adopt a groundwater management program that maintains local control while providing a safety net through state intervention.
Regulation of groundwater is not a new idea in California. The Legislature flirted with the idea of regulating groundwater extraction 100 years ago.1 In 1913, the California Conservation Commission proposed a bill that would, among other things, have required users extracting water for use on non-overlying land to obtain an appropriative permit.2 Conversely, users who would extract water for use on the overlying land would be free from regulation.3 The groundwater portion of the bill, after going through several changes—including an iteration requiring permits for appropriation of a combined surface and underground water system4 — settled on distinguishing percolating groundwater from “subterranean streams flowing from known and definite channels.”5 The former would remain unregulated, while the extractions from the latter would require a permit from the newly-formed State Water Commission, the predecessor of the current State Water Resources Control Board (“Board”). Practically speaking, these subterranean streams are rarely found in California.6 Thus, the Legislature declined to regulate the overwhelming majority of groundwater in California.
In addition to the Legislature’s historical apathy towards groundwater regulation, courts have restricted counties, municipalities and the Board from regulating the practice. Local political subdivisions are preempted by the Water Code from regulating water and irrigation districts with requirements in addition to those imposed by the legislature.7 Likewise, the First District Court of Appeals disabused the Board of its interpretation that “subterranean streams flowing from known and definite channels” include water moving in a wide alluvial valley without regard for direction.8 As a result, the only way to achieve any form of groundwater management involved costly and time-consuming petitions to courts through the adjudication of basins, a practice found primarily in Southern California.9
Despite these impediments, the Legislature saw fit to offer more groundwater management tools to local agencies when they enacted AB 3030 in 1992.10 The law allows local water provider agencies to develop their own groundwater management sustainability plans. The plans, created and adopted voluntarily, may draw upon a series of technical components to achieve a sustainable basin including monitoring, land use review, and well construction policies.11
The Approved Bills
The legislation tasks each basin in the State with identifying a local agency, or collection of local agencies, to develop a groundwater sustainability management plan by 2017. The agency, or collection of agencies, will then develop a groundwater sustainability management plan based on regulations proffered by the Department of Water Resources (“DWR”). For basins that are currently in a state of overdraft, their agency must submit a plan for approval to the DWR by 2020; agencies for non-over drafted basins have until 2022.
Barring approval of a groundwater sustainability management plan, the basin must submit and have an alternative approved by the DWR. Agency alternatives are (1) submission of a plan adopted according to AB 3030; (2) management by adjudication; or (3) submission of a report that demonstrates the basin has operated within a sustainable yield for a period of ten years.
Groundwater Sustainability Management Plans
Agencies tasked with implementing groundwater sustainability management plans will have a plethora of tools to ensure compliance, including authority over spacing and construction of wells, suspension of pumping for individuals or in aggregate, and administrative civil penalties. The legislation is careful to caution that such actions or determinations will have no effect on the water rights of users. Additionally, agencies may also facilitate the accounting and transfer of unused groundwater between users within the basin.
If a basin fails to adequately manage its affairs, the state, through the Board, will place it on probation. The Board will develop and run an interim groundwater sustainability management plan while the probationary basin agency identifies failures of their plan and implementation. Upon designation of probationary status, a basin will have six months to submit a revised plan. A basin may trigger probation by missing deadlines, failing to conform with DWR’s plan standards or implementation requirements. Additionally, a Board and DWR determination that a basin is in long-term overdraft will trigger probation. Most importantly, the Board may place a basin on probation if there is evidence of significant deletions of waters interconnected surface waters. This provision recalls the Board’s authority over “subterranean streams flowing from known and definite channels.” How broadly the Board chooses to exercise this authority in the Central Valley or elsewhere may prove a source of controversy in coming years.
After a century of practically no groundwater regulation, California is poised to adapt a comprehensive groundwater management scheme. This legislation reflects California’s preference for local management tailored for the diverse climates and geography of the state.
8 North Gualala Co. v. State Water Resources Control Bd. (2006) 139 Cal.App.4th 1577, at 1605-1606. Such an interpretation would grant the Board jurisdiction over most of the groundwater in the Sacramento and San Joaquin valleys.
11 Executive Summary of AB 3030, Department of Water Resources http://www.water.ca.gov/groundwater/docs/1992_AB3030_Summary_02202014.pdf (As of September 5, 2014).
12 Environmental Law Foundation et al. v. State Water Resources Control Bd. Case No. 34-2010-800000583. Sacramento County Superior Court. The Environmental Law Foundation seeks, among other things, to compel the Board to regulate groundwater extraction, beyond an adjudicated zone, alleged to be hydrologically connected to the Scott River.