SUSTAINABLE GROUNDWATER MANAGEMENT ACT AN OVERVIEW (CR 202002)

Introduction

California’s Sustainable Groundwater Management Act, or “SGMA” as it is often called and which appears at section 10720 et seq. of the California Water Code, was signed into law on September 16, 2014.  SGMA was and is intended to regulate what had previously been largely unregulated in California except through litigation. Groundwater scarcity disputes had been adjudicated between government and private stakeholders in court proceedings.  Many of the concepts and much of the terminology used or useful in SGMA stem from those earlier decisions. SGMA effectively forces parts of California to do what would probably end up happening anyway. California is, in fact, one of last state’s in the Western United States to have groundwater management at state level.

The need for groundwater management has grown over the years, spiked by years of drought and growth.  Areas of particularly acute overdraft include the Southern San Joaquin Valley. SGMA essentially requires localities to set up Groundwater Sustainability Agencies (“GSA’s”), and groundwater sustainability plans (“GSP’s”) for basins in critical overdraft or moderate overdraft.  The Department of Water Resources (“DWR”) in Bulletin 118 has established a list of such basins. As dicussed further below, SGMA also establishes deadlines for localities to establish GSA’s and GSP’s. If the localities fail to meet those deadlines to the satisfaction of the DWR or other supervising state agencies, California will step in.  The authority of GSA’s includes monitoring and ultimately limiting groundwater extractions. SGMA follows the lead of earlier legislation which created a framework for groundwater agencies that would create voluntary plans for groundwater management. That management has now become mandatory for basins in critical or medium overdraft.

Since 2015, and consistent with SGMA’s deadlines, three GSA’s have been established in Sonoma County: the Sonoma Valley Groundwater Sustainability Agency, the Petaluma Valley Groundwater Sustainability Agency, and the Santa Rosa Plain Groundwater Sustainability  Agency. These were set up for three groundwater basins in the County that were determined by the DWR to be in moderate overdraft, including the Sonoma Valley Groundwater Basin, the Petaluma Valley Groundwater Basin, and the Santa Rosa Plain Groundwater Basin. They have boards of directors and have been meeting to develop Groundwater Sustainability Plans, or GSP’s, for their respective basins.  Preliminary work has included charting future wo rk, a determination of the costs of implementation, the passge of groundwater sustainability fees for well owners, and the drilling of monitoring wells to determine groundwater levels. These GSA’s have developed websites which can be accessed at sonomacountrygrounwater.org, 

 

Stated Goals And Limitations Of Act

1. Local Control

The state legislature has attempted with sgma to vest primary authority for managing groundwater in local agencies.  The state is the default authority.

2. Achieving Sustainable Yield

“[t]he maximum quantity of water, calculated over a base period representative of long-term conditions in the basin and including any temporary surplus, that can be withdrawn annually from a groundwater supply without causing an undesirable result.” 

(Water Code § 10721(v))

“Undesirable Result”

One or more of the following: (1) chronic lowering of groundwater levels; (2) reduction of groundwater storage; (3) seawater intrusion; (4) degraded water quality; (5) land subsidence that substantially interferes with surface land uses; and (6) surface water depletions that have significant and unreasonable adverse impacts on beneficial uses of the surface water. 

(Water Code § 10721(w))

3. No Determination or Alteration of Water Rights

 “Nothing in this part, or in any groundwater management plan adopted pursuant to this part, determines or alters surface water rights or groundwater rights under common law or any provision of law that determines or grants surface water rights.” 

(Water Code § 10720.5(b)) 

 

Core Provisions Of SGMA

1. Basin Definitions and Revisions

“Basin” means a basin or sub-basin

Identified and defined in DWR Bulletin 118

(Water Code § 10721(b))

 A local agency may request that DWR

revise the boundaries of a basin, including

the establishment of new sub-basins. 

(Water Code § 10722.2 (a))

What is a groundwater basin?

“A groundwater basin is defined as an alluvial aquifer or a stacked series of alluvial aquifers with reasonably well-defined boundaries in a lateral direction and a definable bottom.”

DWR Bulletin 118, 2003

2. Basins that Need Plans

.Only medium and high priority basins

.SGMA does not apply to specified adjudicated basins.

.Water Code 10720.8

3. Groundwater Sustainability Agency (GSA)

Any local agency or combination of local

Agencies with land use, water management, or planning authority overlying a groundwater basin may elect

to be a GSA for that basin. 

(Water Code § 10723(a))

4. Authority of Groundwater Sustainability 

Agency

GSA’s may require that every groundwater extraction facility be measured by a device satisfactory to the GSA 

(Water Code §10725.9(a)); see Water Code §10721(e) (defining “groundwater extraction facility” as any “device or method for extracting groundwater from within a basin:” i.e., e.g., a well).

GSA’s may impose spacing requirements on new groundwater well construction and impose “reasonable operating regulations on existing groundwater wells to minimize well interference, including requiring extractors to operate on a rotation basis.” 

(Water Code §10726.4(a)(1))

GSA’s may “control groundwater extractions by regulating, limiting or suspending extractions from individual groundwater wells or extractions from groundwater wells in the aggregate, construction of new groundwater wells, enlargement of existing groundwater wells, or reactivation of abandoned groundwater wells, or otherwise establishing groundwater extraction allocations.”

(Water Code §10726.4(a)(2)) 

5. Groundwater Sustainability Plans (GSP’s)

GSP’s “shall be developed and implemented

for each medium- or high-priority basin by

a groundwater sustainability agency. . .”

(Water Code §10727(a))

A GSP may be a single plan developed by one

GSA, a single plan developed by multiple

GSA’s, or multiple plans implemented by

multiple GSA’s pursuant to a coordination

agreement. 

(Water Code §10727(b))

GSP’s must include “[m]easurable objectives, as well as interim milestones in increments of five years, to achieve the sustainability goal in the basin within 20 years of the implementation of the plan.”

(Water Code § 10727.2(b)(1))

6. State Review and/or Intervention

Upon adoption of a GSP, the GSA shall submit the GSP to DWR for review. 

(Water Code § 10733.4(a)

7. Possibility of State Intervention

The state may intervene if:

GSA not formed by June 30, 2017

Plan not adopted by the required time

DWR (together with the State Water Resources Control Board (“SWRCB”) determines plan for basin in critical overdraft is inadequate or not being implemented to achieve sustainability.

For basins with an inadequate plan or implementation, SWRCB determines that a basin is in a condition of long-term overdraft or where groundwater extractions result in significant depletions of interconnected surface waters

(Water Code §10735.2(a)(1-5))

8. Summary of Deadlines

January 31, 2015

DWR prioritizes groundwater basins

June 1, 2016

DWR adopts regulations for evaluating groundwater sustainability plans & alternatives

January 1, 2017

DWR publishes best management practices for the sustainable management of groundwater

July 1, 2017

State may designate basin as probationary basin

January 1, 2016

DWR adopts regulations regarding basin boundary revisions.

December 31, 2016

Republishes report on water available for replenishment of groundwater in the state.

June 30, 2017

Groundwater sustainability agencies are formed

January 31, 2020

Groundwater sustainability plans are adopted and implementation under way for basins in critical overdraft.  Plans are submitted to DWR for adequacy review upon adoption interim milestones are reviewed by DWR every five years.  Interim milestones are reviewed by DWR every five years.

January 31, 2022

Groundwater sustainability plans are adopted and implementation under way for basins not in overdraft.  Plans are submitted to DWR for adequacy review upon adoption. Interim milestones are reviewed by DWR every five years.

January 31, 2040

Groundwater sustainability agencies in critically over drafted basins achieve sustainability goal.

January 31, 2042

Groundwater sustainability agencies in basins are not in overdraft achieve sustainability goal.

 

Relation To Other Laws Establishing Groundwater Rights

1. SGMA “Reminder”

“Nothing in this part, or in any groundwater management plan adopted pursuant to this part, determines or alters surface water rights or groundwater rights under common law or any provision of law that determines or grants Surface water rights.” 

(Water Code § 10720.5(b)) 

2. SGMA is a likely catalyst for determining water rights – by court adjudication or otherwise.C
   ourt adjudications have been how groundwater rights in conditions of overdraft have traditionally been decided“
3. Clean-up” legislation in section 830 of the California Code of Civil Procedure facilitates these determinations and posits possible change to “dormant” groundwater rights.
4. Common Law Groundwater Rights

.Overlying

.The right of the overlying landowner to the groundwater underneath his/her land.

.Prescriptive

.The right of the user of water which arises from open and notorious use of water during a period of overdraft of a basin, i.e., during a period of “hostile” use.

.Appropriative

.The right of a non-overlying user to groundwater by virtue of acquisition and use of the water that has not been open, notorious, and hostile .

.Pueblo

.These are water rights granted to pueblos, or settlements, under both the Spanish and Mexican governments, prior to the Treaty of Guadalupe Hidalgo, and which continue to be recognized under California law.  Pueblo water rights are the rights of such settlements to all rivers, streams, and groundwater flowing through or situated under the settlements. The rights expand with the needs of the settlements and cannot be lost.  Two cities which have asserted such rights include the City of Los Angeles and the City of San Diego.

5. Priorities

.When a basin is not an overdraft, and/or the use by individuals of groundwater does not impede the beneficial use of other owners, there are no limitations to use or applicable priorities.

.If a basin is in overdraft, or the use of groundwater by individuals impedes the use by others, priorities come into play.

.Normally overlying users have the highest priority

.If there is a shortage between such users, their use is reduced  proportionally

.In a situation of overdraft, or where one use impedes another use, prescriptive rights to groundwater use trump overlying users to the extent of the amount used and 

6. Reasonable or Beneficial Use Doctrine Modifies All

“It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner’s land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.”

.Article X, Section 2, California Constitution), added to the California Constitution in 1928 as Article XIV, Section 3)

7. Equitable Apportionment

.Although GSA’s may not themselves or without court involvement or agreement, determine equitable apportionment, SGMA is likely to lead to such determinations.

.Apportionment Concepts Developed in Caselaw

“In ordering a physical solution,  therefore, a court may neither change priorities among water right holders nor eliminate vested rights in applying the solution without first considering them in relation to the reasonable use doctrine.” 

(City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1224, 1248)

.”It is now necessary for the trial court to determine whether such owners, considering all the needs of those in the particular water field, are putting the waters to any reasonable beneficial uses, giving consideration to all factors involved, including reasonable methods of use and reasonable methods of diversion. From a consideration of such uses, the trial court must then determine whether there is a surplus in the water field subject to appropriation.”  (City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1224, 1242)

 

Sonoma County Agencies

Since 2015, and consistent with SGMA’s deadlines, three GSA’s have been established in Sonoma County: the Sonoma Valley Groundwater Sustainability Agency, the Petaluma Valley Groundwater Sustainability Agency, and the Santa Rosa Plain Groundwater Sustainability  Agency. These were set up for three groundwater basins in the County that were determined by the DWR to be in moderate overdraft, including the Sonoma Valley Groundwater Basin, the Petaluma Valley Groundwater Basin, and the Santa Rosa Plain Groundwater Basin. They have boards of directors and have been meeting to develop Groundwater Sustainability Plans, or GSP’s, for their respective basins.  Preliminary work has included charting future work, a determination of the costs of implementation, the passge of groundwater sustainability fees for well owners, and the drilling of monitoring wells to determine groundwater levels. These GSA’s have developed websites which can be accessed at sonomacountrygrounwater.org.