California water law discussion

California Water Foundation Director Lester Snow, left, and State Water Board Member Dorene D'Adamo, speak at the Almond Conference on how California's trio of groundwater laws could be implemented and the deadlines mandated by the law for basins to provide plans to reach sustainability.

New California law seeks to cap groundwater overdraft

Three state laws combine to form Sustainable Groundwater Management Act Law forces formal plans to achieve groundwater sustainability Law fails to define "sustainability," leading to possibility of legal challenges

A trio of state laws that went into effect Jan. 1 in California will not immediately turn the tide on decades of groundwater overdraft though that is their long-term goal.

The immediate impacts of California’s Sustainable Groundwater Management Act of 2014 (SGMA) will generally not be seen by farmers and those with domestic wells, but will take place in board rooms and offices.

That’s not to mean farmers and those in agriculture will want to sit back and ignore what they don’t see: quite the opposite.

David Orth, general manager of the Kings River Conservation District (KRCD), says anyone with a stake in groundwater needs to be involved in the process of developing groundwater sustainability agencies and their associated plans.

“Pay particular attention to what is happening locally and through DWR’s rulemaking and regulatory process as this will define with more clarity some provisions in the statute,” Orth said.

KRCD was formed through special legislation in 1951 to secure natural resources in the San Joaquin Valley and today is a leading resource management agency for the Kings River region serving agriculture, business and residential communities within portions of Fresno, Kings and Tulare counties.

Last year California lawmakers passed the SGMA, a package of three laws signed by Gov. Edmund Brown Jr. which seeks to stop the long-term overdraft of aquifers in California.

The law mandates that local groundwater sustainability agencies (GSA) be formed by mid-2017 and that those agencies with groundwater basins in critical overdraft have plans in place by early 2020 to correct overdraft conditions within the next 20 years.

Practically speaking that means most of the groundwater basins in California and all of those in the Central Valley from Redding to Bakersfield will need to have plans in place by 2020 and reach sustainability by 2040.

Adjudicated basins are exempt from the law.

In most cases, new agencies and joint powers agreements will be necessary to begin the process towards groundwater sustainability in California.

Sustainability?

As with any legal document the details are in the definitions and some of those have not been clearly defined in the act, according to Louie Brown, an attorney with Kahn, Soares & Conway in Sacramento.

The law firm specializes in agricultural issues and represents many agricultural organizations in political discussions at the state capitol.

Though dictionary definitions exist, legal definitions for words like “sustainable” were not made clear in the SGMA and could lead to litigation unless legislation addressing these shortcomings is passed.

“The word ‘sustainable’ had not been defined by the courts,” Brown said.

“We heard some whispers before the law was passed that if it passes lawyers are ready to litigate the word,” said Lauren Noland-Hajik, an attorney with Kahn, Soares & Conway.

We’ve already heard questions and threats of litigation, Orth suggested.

“I think until action is taken that is adverse to various interest I’m not sure what the lawsuits will be,” Orth continued.

According to Brown, the Legislature could have chosen to define the term “sustainable” in the act, which is used numerous times, but did not. Or, as Brown continued: “they could have chosen to use terms that had already been litigated and adjudicated that the water community has understood and operated under for years.”

For instance, terms like “safe-yield” have been defined by the courts. Unknown to many participants is why the Legislature purposefully chose the word “sustainable.”

There is already talk at various meetings on the subject of the SGMA that the 2015 legislative session will need to include “clean-up” legislation to address some of the act’s shortcomings.

Drought

Almost a year before the SGMA was signed by Gov. Brown, Orth was involved in discussions that would lead to the act.

According to Orth, the writing was on the wall in late 2013 as seasonal rains failed to appear by Christmas and newspaper editorials and articles were talking drought.

“As a result I spent the better part of 2014 in Sacramento working on policy documents, then on the legislation,” said Orth.

Some, including Orth and California Water Foundation Director Lester Snow, believe that effective groundwater management and the goal of long-term sustainability of water resources for agricultural, urban and environmental users in California must be tied to effective surface water management.

According to Snow the act assumes that groundwater pumping in drought years will be unsustainable by the very fact it is replacing what is not available through surface water allocations, which is why he believes that ample surface water storage and effective management of those resources become part of the overall process to reach balance in California groundwater basins.

“The new groundwater act assumes that we are going to over-pump our groundwater basins during a drought,” Snow said. “The key thing is we’ve got to stop doing that during average years so we have storage under shortage conditions.”

The connection between surface and groundwater came to a head in 2014 when state and federal water managers denied surface water deliveries to California farms, leaving growers with no choice but to pump water from underground.

While typical years can see 40 percent of a grower’s water supply come from underground and 60 percent in dry years, a zero-percent surface allocation to California farms meant that 100 percent of what most farmers used to grow what little crops they could came from underground aquifers. It was only a few farmers with the most senior of water rights and access to limited surface supplies who saw any surface water in 2014.

The effects on the rest of agriculture were catastrophic as those without wells saw permanent crops die and domestic wells in some parts of the state dried up, leaving residents without water.

Deadlines

The SGMA seeks to return groundwater basins to balance by 2040 with a series of deadlines between now and then to mark that progress.

While the law is designed to allow local agencies to achieve these goals, the State of California can step in and assume that role if local agencies do not.

“Our objective here is to keep groundwater management at the local level and not at the State Water Resources Control Board, or in many cases by the guys in the black robes through the judicial process,” said Orth.

State Water Board Member Dorene D’Adamo says the state water board would prefer that local agencies handle those efforts though the state agency is willing to step in if necessary.

“There should be a limited state role in the event that the locals either don’t have the political will or are unable to formulate those plans,” D’Adamo said.

In some cases county boards of supervisors may assume the role as a GSA and formulate groundwater plans, though because the various water districts and county boundaries do not match up neatly over groundwater basins, the likelihood is high that these agencies will need to form joint powers agreements.

Further challenging efforts will be the science and staffing needed to study and implement these plans. According to Orth, many of these agencies could find themselves challenged to commit to such detailed work within the prescribed timelines.

What could help the process is that the US Geological Survey’s National Water Information System is said to contain extensive water data for the nation. Public access to these data is provided.

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Cost is yet another factor in all this as scientific studies don’t come cheap, nor do efforts to increase surface storage to reduce the pressure it presents on pumping aquifers when surface supplies are insufficient.

Some money is available from Proposition 1, the water bond, to do some of the work related to groundwater, as is $2.5 billion for surface water storage.

Still, Snow remains concerned that if surface storage issues are not addressed in the long term, and that if reservoirs do not refill in the short-term, further impacts to California’s imbalanced water system could be even worse.

 

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