Facts About the Sustainable Groundwater Management Act from Kahn, Soares & Conway

What You Need to Know About the Groundwater Legislation Passed in California on August 29, 2014.

More than 125 farmers, business leaders, water managers, elected officials and concerned citizens packed the Kings County Board of Supervisors Chambers on September 25, 2014 to discuss California's Sustainable Groundwater Act recently signed into law by Governor Brown. Louie Brown, David Kahn and Loren Noland provided a summary of the new legislation and discussed next steps including "cleanup legislation," litigation, and groundwater basin adjudications. The Kahn, Soares & Conway team also provided attendees with a memorandum on the subject.

Here is an overview of the Act including the timeline, contributing legislation, issues and governing bodies.

Timeline and Contributing Legislation

  • The California Legislature passed the Groundwater Legislation on August 29, 2014.
  • Governor Brown signed the legislation on September 16, 2014.
  • The Act becomes effective January 1, 2015.
  • The legislative package is aimed at comprehensively regulating groundwater in California known as the Sustainable Groundwater Management Act ("Act").
  • The Act will bring the greatest change to water rights in California since 1914.
  • The legislation is comprised of three (3) pieces of legislation:
  • SB 1168, which sets the groundwork for the Act
  • AB 1739 which provides the enforcement mechanism for the Act
  • SB 1319 which provides "clean up" language to the Act.

Issues with the Sustainable Groundwater Management Act

  • The Act states it will not alter, establish or determine ground water or surface water rights, but rather govern how those rights are exercised. However, no extractions of groundwater between January 1, 2015 and the date of adoption of a groundwater sustainability plan, whichever is sooner maybe used as evidence of, or to establish or defend against, any claim of prescription.
  • The legislation was written in a matter of weeks and is full of ambiguous terms and uncertainties as to the ground water management process. This will result in extensive litigation and further "clean up" legislation.
  • The Act also sgives state government significant authority in monitoring the extraction of groundwater and imposition of fees.
  • While the unintended consequences of the Act are unknown, it is important to become familiar with the Act, so we are prepared to act when the opportunity to affect the implementation of the Act arises.
  • Besides the few local agencies given exclusive management authority in the Act as the Groundwater Sustainability Agency (GSA) for certain Basins, there is no indication in the Act of who these local agencies are or how they are formed.

The Sustainable Groundwater Management Act

  • The Sustainable Groundwater Management Act is intended to provide local management of groundwater basins.
  • There are 515 alluvial groundwater basins and sub-basins in California as defined by the Department of Water Resources Bulletin 118.
  • If a Basin fails to timely meet the statutory deadlines, the Sustainable Groundwater Management Act authorizes the State Water Resources Control Board to control groundwater management in that Basin.

The Groundwater Sustainability Agency (GSA)

A groundwater sustainability agency may be formed by one (1) local agency or a combination of local agencies overlying a groundwater basin.

The Act gives a GSA broad power to adopt rules, regulations, ordinances and regulations and take any action it deems necessary to carry out the Act. This includes investigations to:

  • Determine the need for groundwater management;
  • Prepare and adopt a groundwater sustainability plan ("GSP") and implement rules and regulations;
  • Propose and collect fees; and
  • Monitor compliance and enforcement.
  • The GSA may investigate surface waters, groundwater waters, and surface and groundwater rights. The GSA may also inspect the property or facilities of a person or entity in its management area to determine whether that person or entity is in compliance with the Act.
Read the full memorandum here

A GSA may also:

  • Require registration of wells within its management area;
  • Require every well in the management area be measured by a water measuring device, at the expense of the well owner;
  • Require a well owner or operator to file an annual statement setting forth the total extraction of groundwater from that well for the previous year;
  • Acquire, hold, use, enjoy, sell, let and dispose of real and personal property including lands and water rights and construct, maintain, alter and operate any works or improvements within or outside the GSA as necessary and proper to carry out the Act;
  • Appropriate, acquire, import, conserve and store surface water and groundwater and surface and groundwater rights as necessary and proper to carry out the Act;
  • Establish a program for voluntary fallowing of agricultural lands;
  • Perform acts necessary to enable the GSA to purchase, transfer, deliver or exchange water or water rights; and
  • Transport, reclaim, purify, desalinate, treat or otherwise manage and control polluted water and wastewater.

A GSA has the additional authority to regulate groundwater extractions by:

  • Imposing spacing requirements on new wells and imposing reasonable operating restrictions on existing wells to minimize well interference;
  • Controlling groundwater extractions by regulating, limiting or suspending extractions from individual wells or in the aggregate, construction of new wells, enlargement of existing wells, reactivation of abandoned wells or establishing groundwater extraction allocations; and
  • Authorizing temporary and permanent transfers of groundwater extraction allocations; and establishing rules to allow unused groundwater extraction allocations to be carried over one year to another and voluntarily transferred.
  • Any limitation on groundwater extractions by a GSA, however, shall not be construed to be a final determination of rights to extract groundwater from the basin.

The Groundwater Sustainability Act was written and passed by the Legislature in a manner of weeks. Further, there were:

  • No legislative policy hearings on the final versions of the legislation. This rushed, inadequate process creates numerous concerns including:
  • There are multiple areas in the Act that discuss connectivity of groundwater and surface water.
  • Without a reliable source of surface water, basins must rely on groundwater. This connectivity language may allow groundwater to be taken from agriculture and dedicated to environmental or other uses.
  • The Act exempts already adjudicated basins, but is unclear about basins that enter into the adjudication process after the Act passes.
  • The words "sustainable" and "sustainability" are found throughout the Act, but are not defined, and, have never been defined by the courts.
  • The Act creates uncertainty in future groundwater rights.
  • Groundwater recharge has not been identified as a beneficial use of water in the Act.
  • The Act is vague and ambiguous as to the entities that will be permitted to participate in or as the GSAs.
  • Federally reserved water rights to groundwater, which includes tribal water rights, are required to be respected in full.
  • An individual's groundwater extraction data is not confidential.
Read our full review of the Sustainable Groundwater Management Act here.