Assembly Bill 658, signed into law last week, creates new temporary diversion permits allowing for excess surface water capture during high-flow events. Permits automatically expire after 180 days, unless renewed. The law is designed, in part, to encourage groundwater recharge projects that could assist groundwater sustainability agencies and other local agencies to achieve groundwater sustainability requirements under the Sustainable Groundwater Management Act, known as SGMA.
News Keyword: Legal Issues and Rulings
Groundwater Pumpers Beware: The Public Trust Doctrine is Lurking
The Third District Appellate Court recently issued a long-awaited decision in Environmental Law Foundation vs. State Water Resources Control Board (ELF v. SWRCB). The decision confirms the expansive scope of California’s public trust doctrine by ruling that the doctrine applies to the extraction of groundwater if the extraction will adversely impact a navigable waterway. The court also determined that the 2014 enactment of the Sustainable Groundwater Management Act (SGMA) did not displace the common law duty to consider public trust interests before allowing groundwater extractions that could potentially harm a navigable waterway. The case arose in the context of a lawsuit over Siskiyou County’s (the County) obligations in administering groundwater well permit and management programs with respect to the Scott River, a navigable waterway tributary to the Klamath River. The Scott River is a public trust resource.
Read more from the National Law Review by clicking here.
Groundwater recharge in the SGMA era
Kathleen Miller writes,
“Implementation of the Sustainable Groundwater Management Act (SGMA) was always going to be tricky. Part of the necessary growing pains of SGMA is determining how the revolutionary statute interacts with traditional tenets of water law. As with any other sweeping legislative change, SGMA does not provide direct answers for every practical question which arises as the law is put into place.
Take SGMA’s so called “six deadly sins” – the undesirable results that newly formed groundwater sustainability agencies (GSAs) are tasked with avoiding, running the gamut from seawater intrusion to subsidence. One of the ways to combat undesirable results is to implement a more robust groundwater recharge program – diverting high surface water flows during wet years (as we just experienced) to aquifers. In fact, we’ve begun to see innovative projects, such as Recharge Net Metering andFlood-MAR, sprout up in the wake of SGMA to do exactly that. But how do we get water for those projects in the first place? … ”
Read more from the Legal Planet blog here: Groundwater recharge in the SGMA era
Paso Robles: Defending pumping
From New Times San Luis Obispo:
“A Santa Clara County jury served four Paso Robles-area government agencies a victory in court on Sept. 24, concluding in a unanimous ruling that those public water purveyors had established a right to pump from the Paso Robles Groundwater Basin—even in adverse conditions, like a drought.
After a month-long trial stemming from a 2013 lawsuit filed by private landowners, the jury ruled that the agencies—San Luis Obispo County, the city of Paso Robles, Templeton Community Services District (CSD), and San Miguel CSD—successfully proved that they’d established overriding rights to basin water between 1981 and 1990, when the aquifer was in a state of overdraft. … ”
Read more from New Times SLO here: Defending pumping
California Leans Heavily on its Groundwater, But Will a Court Decision Tip the Scales Against More Pumping?
From Western Water:
“In 1983, a landmark California Supreme Court ruling forced Los Angeles to cut back its take of water from Eastern Sierra creeks that fed Mono Lake. Some 35 years later, an appellate court concluded the same public trust doctrine that applied in the Mono Lake case also applies to groundwater that feeds a navigable river in a picturesque corner of far Northern California. But will this latest ruling have the same impact on California water resources as the historic Mono Lake decision?”
Read more from Western Water here: California Leans Heavily on its Groundwater, But Will a Court Decision Tip the Scales Against More Pumping?
Why California law requires a clear benefit for groundwater recharge
From Water Deeply:
“Researchers at the University of California recently highlighted a flaw in state law that may prohibit diverting streamflow to recharge groundwater. The problem is that groundwater recharge by itself is not considered a “beneficial use” under state law, and meeting that definition is a requirement to obtain a permit to divert water.
Officials at the State Water Resources Control Board, which oversees water rights, say the reality is not so clear-cut. In fact, existing rules allow most groundwater recharge projects to obtain a water right. It’s just that they may not be awarded that right for the act of recharge by itself. The applicant would have to specifically target some ancillary benefit of recharge, such as salinity control in an aquifer or reversing land subsidence caused by overpumping groundwater. … ”
Read more from Water Deeply here: Why California law requires a clear benefit for groundwater recharge
Report: An Assessment of the Sustainable Groundwater Management Act for Municipal Water Suppliers
From Brownstein Hyatt Farber Shreck:
The Sustainable Groundwater Management Act (“SGMA”) is now in its fourth year of operation. Groundwater Sustainability Agencies (“GSAs”) have been formed throughout the medium- and high-priority basins across California, and those GSAs are now developing Groundwater Sustainability Plans (“GSP”). The GSPs will ultimately afford greater long-term groundwater supply reliability by avoiding chronic groundwaer depletion and other “undesirable results,” such as signficant loss of storage, water quality degradation, subsidence, and seawater intrusion.
To achieve sustainable management in basins experiencing pronounced overdraft conditions, either augmented recharge will be necessary or groundwater extractions will need to be reduced over time. This process will affect municipal water suppliers that rely on groundwater basins that are subject to SGMA’s provision. It is, thus, important that municipal water suppliers understand the requirements of SGMA, the potential impacts to their groundwater supplies, and the procedural and substantive options and strategies that should be considered throughout the process.
To that effect, this paper will cover:
1. An overview of SGMA and its essential provisions;
2. The issues that will need to be resolved to implement SGMA, including the potential
division of available water supplies within a basin;
3. A summary of key groundwater rights laws;
4. A discussion of groundwater basin adjudications and new laws designed to streamline future adjudications and harmonize their results with SGMA; and
5. Strategies that municipal water providers may employ to optimize outcomes from the SGMA/adjudication process.
Read the report from Brownstein Hyatt Farber Shreck here: Report: An Assessment of the Sustainable Groundwater Management Act for Municipal Water Suppliers.
Indian Wells Valley Groundwater Authority digests water rights
From the Ridgecrest Independent:
“The Indian Wells Valley Groundwater Authority’s policy advisory committee received a comprehensive legal rundown and case history on water rights Thursday night.
In a two-hour meeting, Groundwater Authority special legal counsel Jim Markman highlighted different scenarios, described the difference between overlying water rights (essentially pumping over the land one owns) and appropriators rights (those held by agencies like the IWV Water District), discussed adjudication and possible outcomes for achieving sustainability.
Markman said his task “is to pull all the interests in this basin and have everyone understand their strengths and possible weaknesses of their claims for water production rights,” not advocating for any one group’s water rights or priorities. … “
Read more from the Ridgecrest Independent here: Indian Wells Valley Groundwater Authority digests water rights
The groundwater manager’s dilemma: How to comply with new California law without changing water rights
From the Environmental Defense Fund’s Growing Returns blog, Christina Babbitt and Daniel M. Dooley with New Current Water and Land write:
“Over the next two years, more than 100 groundwater sustainability agencies in California will have to hammer out a plan to make their groundwater basins sustainable.
But as mangers in many areas work to combat decades of over-pumping, they face a major dilemma: In dividing the groundwater pie to avoid overuse, they can’t change Byzantine groundwater rights that date as far back as 1903.
In a new working paper, “Groundwater Pumping Allocations under California’s Sustainable Groundwater Management Act,” Environmental Defense Fund and New Current Water and Land – a California-based consulting firm – provide water managers with a recommended approach to navigate this challenge and develop plans that are more durable, and thus likely to succeed, under the new Sustainable Groundwater Management Act (SGMA). … “
Read the full post at the Growing Returns blog here: The groundwater manager’s dilemma: How to comply with new California law without changing water rights
California Court Finds Public Trust Doctrine Applies to State Groundwater Resources
Richard Frank writes,
“The California Court of Appeal for the Third Appellate District has issued an important decision declaring that California’s powerful public trust doctrine applies to at least some of the state’s overtaxed groundwater resources. The court’s opinion also rejects the argument that California’s Sustainable Groundwater Management Act (SGMA) displaces the public trust doctrine’s applicability to groundwater resources.
The Court of Appeal’s opinion in Environmental Law Foundation v. State Water Resources Control Board decides two key issues of first impression for California water law: first, whether the public trust doctrine applies to California’s groundwater resources; and, second, if it does, if application of that doctrine has been displaced and superseded by the California Legislature’s 2014 enactment of SGMA. A unanimous appellate panel answered the first question in the affirmative, the second in the negative. … “
Read more from the Legal Planet here: California Court Finds Public Trust Doctrine Applies to State Groundwater Resources