The federal government passes legislation, issues regulations, and establishes and supports policies that impact the agricultural and food processing industry on national issues, typically interstate in nature. Many of the laws and regulations that are passed at a national level are implemented by state and local governments, or agencies of the federal government in district, state, or local offices. The federal government also enters into cooperative and/or work-sharing agreements with state and local government to implement federal agricultural and food processing law and policy. The principal federal agencies at the national level that implement federal agricultural and food processing law are the United States Department of Agriculture (“USDA”), and the United States Food and Drug Administration (“FDA”), but there are many others.
The federal government and its agencies legislates and regulates in a wide variety of agricultural and food processing areas. The portion of the national budget attributable to the USDA was $144 billion in 2019 and $150 billion in 2020. These areas of endeavor include without limitation the following: crop subsidies (to counteract market swings in the agricultural industry); crop insurance; disaster relief (to offset the effect of natural disasters on agricultural production); land retirement programs (taking land out of production for environmental purposes); working land conservation programs (establishing land conservation practices on land that remains in production); grazing land programs (establishing conservation practices on grazing land); other environmental regulation (e.g., the Endangered Species Act and the Clear Air and Water Act); the regulation of Concentrated Animal Feeding Lots (CAFO’s); loans to agricultural producers (typically from the Farm Service Agency and/or the Farm Credit System); labor laws relating to agricultural production including but not limited to the Migrant and Seasonal Agricultural Worker Protection Programs; laws and regulations relating to stockyards (the Packers and Stockyard Act), laws and regulations concerning interstate brokers in fruits, vegetables, seeds, and nuts; laws and regulations relating to food safety and wholesomeness (administered by the FDA, the USDA, and other agencies); laws, regulations, and marketing orders concerning size, quality, containers, and marketing of agricultural products; and laws and regulations concerning organic foods (Organic Foods Production Act of 1990).
State Laws and Regulations
California takes the laboring oar in passing, implementing, and enforcing laws and regulations relating to the agricultural and food processing industries. California sometimes implements or enforces federal standards. The California Department of Food and Agricultural, as well as the California Department of Public Health and other agencies implement and enforce state law. Not infrequently, district, county commissioner, and local agencies also enforce state law.
California laws and regulations touching agriculture and food processing cover a wide array of subject areas, including the following; size, shape, quality, container, packaging, and marketing provisions; laws and regulations relating to plant quarantine; pest control; agricultural associations and district fairs and development activities; agricultural liens; processing standards and procedures; agricultural labor laws; animal ownership, rights and liabilities; boundaries and fences, conservation of agricultural law (e.g., Williamson Act); contracts; cooperatives (agricultural); direct marketing (farmer’s markets, farm stands, etc.); farm leases & sharecropping; labeling of agricultural product; marketing associations and cooperatives; nurseries and nursery stock; regulation of produce dealers; slaughterhouses; water rights.
Many of the foregoing laws and regulation are implemental or enforced by the Department of Agricultural pursuant to detailed provisions found in the California Food & Agricultural Code and related regulation. (California Food & Agriculture Code (“F&A”) sections 101 et seq.) In this regard, state food and agriculture administration is performed by the Department of Food and Agriculture under the Secretary of Food and agriculture as its executive officer, and by the state Board of Food & Agriculture. (F&A 102-104, 901) The Board inquires into the needs of the agricultural industry and, together with the secretary, confers with and advises the Governor as to how the department may best serve the industry and consumers of agricultural products. (F&A 951) The Board may conduct investigations and hearings, and prosecute actions concerning all matters and subjects under the jurisdiction of the department. (F&A 952) Local administration is by county agricultural commissioners, who are in charge of county departments of agriculture. (F&A 2001 et seq.) The legislature has also created certain councils and commissions to aid in the administration of specified phases of agriculture: examples include dairy, beef, and grapes. (See, e.g., F&A 6401 et seq. (dairy); F&A 64501 et seq. (beef), F&A 65500 et seq. (grapes))
The California Department of Food and Agricultural has the general duty to promote and protect agriculture within the state, (F&A 401), and to execute the provisions of the Food & Agricultural Code and other laws. (F&A 404) In addition, the Code provides for a number of specific duties, including without limitation, the following:
the prevention of fraudulent or deceptive practices in the marketing of agricultural commodities and products (F&A 402);]
.the protection and development of agricultural production and rural agricultural economies (F&A 401.5);
the prevention of diseases and insect and weed infestations (F&A 403);
the reproduction and distribution of biological control organisms (F&A 405);
the collection and dissemination of information relating to agriculture (F&A 406, 431, 432, 4234, 461, 481, 491, 492);
the promotion of research and education and the provision of technical information
and support concerning agricultural practices, including without limitation sustainable agricultural practices and ecologically-based pest management alternatives (F&A 500, 501, 550 et seq,)
the maintenance of laboratories for the testing, examining, and diagnosis of livestock and poultry diseases (F&A 520 et seq.);
The department has the power to cooperate with the U.S. Department of Agriculture and other states in pest or disease investigations inside and outside the state in order to protect California’s agricultural industry, and for the purpose of the control or eradication of plant and animal diseases and pests. (F&A 481; 7 USC 450)
More generally, California in the exercise of its “police power” may enact and enforce reasonable and appropriate agricultural regulations in order to protect the general public and enhance the agricultural industry, including those enacted or enforced by the California Department of Food & Agriculture, or otherwise. Such laws and regulations include without limitation
.the licensing or registration of persons involved in various aspects of the agricultural industry, including operators of meat processing establishing, processors of farm products, dealers in pesticides and commercial fertilizers, persons engaged in pest control. (F&A 19010 et seq., 55521 et seq., 55481 et seq., 12811 et seq., 14591 et seq., 11701 et seq, 11901, 12101 et seq., 12251 et seq.)
.the development of standards for fruits, nuts, and vegetables, field crops, sees, seeds, and nursery stock. (F&A 42501 et seq., 52001 et seq., 52251 et seq., 53301 et seq.)
. the requirement of proof of ownership of person marketing fruits, nuts, or vegetables for commercial purposes over a specified quantity must provide the buyer or transport with proof of ownership. (F&A 861).
.the establishment of taxation and assessment for certain commodities, feed, pesticides, as well as the authorization of agricultural commission to establish their own assessments on agricultural producers.(F&A 15061, 12841 et seq., 68101 et seq. (kiwifruit commission), 73251 et seq. (naval orange commission), 75360 et seq. (apple commission)
.the establishment of criminal liability for a violation of any provision of the Food & Agricultural Code except as expressly provided. (F&A 9)
Local Laws and Regulations
Each county in California has its own department of agriculture under the control of the county agricultural commissioner. (F&A 2001, 2002) The commissioner’s duties include without limitation, cooperating in the study and control of agricultural pests, developing exhibits and other information for public dissemination of information concerning the work of the commissioner’s department, the resources of the county, or the products of the county. (F&A 2274, 2276, 2277, 2278, 2279)
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
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.
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))
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
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
Basins that Need Plans
.Only medium and high priority basins
.SGMA does not apply to specified adjudicated basins.
.Water Code 10720.8
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))
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))
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))
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)
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))
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
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
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))
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“
Clean-up” legislation in section 830 of the California Code of Civil Procedure facilitates these determinations and posits possible change to “dormant” groundwater rights.
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.
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
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)
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.
The Sustainable Groundwater Management Act (“SGMA”) was signed into law on September 16, 2014. (California Water Code Section 10720 et seq.). SMGA is intended to regulate California’s groundwater, something which has been up to the Act’s passage largely unregulated.
The need for groundwater management has grown over the years, spiked by years of drought and growth, encouraged by Proposition 1. California is one of last states in the west to have groundwater management at the state level. Previously groundwater scarcity and disputes were 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 forces California to do what would probably have happened anyway in court proceedings.
Federal laws and regulations are the base of the pyramid of laws and regulations impacting agriculture in California. The federal government passes legislation, issues regulations, and establishes and supports policies that impact the agricultural and food processing industry on national issues, typically interstate in nature. Many of the laws and regulations that are passed at a national level are implemented by state and local governments, or agencies of the federal government in district, state, or local offices. The federal government also enters into cooperative and/or work-sharing agreements with state and local government to implement federal agricultural and food processing law and policy. The principal federal agencies at the national level that implement federal agricultural and food processing law are the United States Department of Agriculture (“USDA”), and the United States Food and Drug Administration (“FDA”), but there are many others.
The Sustainable Groundwater Management Agency (“SGMA”) essentially requires localities to set up Groundwater Sustainability Agencies (“GSA’s”) and Groundwater Sustainability Plans (“GSP’s”) for high and moderate priority basins, some in critical overdraft. If localities do not do so adequately, or in a timely manner, the State can step in. Areas of particularly acute overdraft include the southern San Joaquin Valley, but there are others. Examples of medium priority basins include the Santa Rosa Plain, the Petaluma Valley, and the Sonoma Valley Basins in Sonoma County. In such areas, GSA’s must be set up by June 30, 2017. GSP’s must be established by January 31, 2020 for basins in critical overdraft. GSA’s must be established by January 31, 2022 for medium and high priority basins not in critical overdraft. Basins in critical overdraft must achieve “sustainability” by January 31, 2040, and other medium and high priority basins must achieve sustainability by January 31, 2042.
Rights to surface and underground water in California can be placed in four categories: pueblo rights (arising out of the establishment of pueblos such as Los Angeles while California was still part of Mexico), riparian or overlying (attaching to the land adjacent to a surface river or stream (riparian), or underlying land (attached to the land overlying groundwater)), prescriptive (appropriative after five years of open and notorious taking), and appropriative (neither pueblo, riparian, or overlying, and before the five year prescriptive period has run). These four categories are prioritized: pueblo owners generally having superior rights to overlying, riparian or overlying owners having superior rights to appropriative owners, and prescriptive owners having superior rights to appropriative (and in most if not all respect equal to riparian or overlying owners). Water rights are generally considered “usufructuary,” meaning that water cannot be owned per se, but only the right to its “use” and “fruits.” As a result of a 1928 amendment to the California Constitution, water rights are limited to reasonable and beneficial use. (Cal. Const. Art. X, § 2).
California takes the laboring oar in passing, implementing, and enforcing laws and regulations relating to the agricultural and food processing industries. California sometimes implements or enforces federal standards. The California Department of Food and Agricultural, as well as the California Department of Public Health and other agencies implement and enforce state law. Not infrequently, district, county commissioner, and local agencies also enforce state law.
California’s Sustainable Groundwater Management Act “(“SGMA”), states that “[n]othing 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.” (Cal. Water Code § 10720.5(b)) The meaning of this passage is not entirely clear, as Groundwater Sustainability Agencies (“GSA”), do have the right to regulate groundwater use, including limiting extractions of groundwater. It appears reasonably clear that although GSAs may not single-handedly determine groundwater rights, they may take actions that effectively determine groundwater rights, with courts stepping in to determine the validity of what the GSAs have done. (See Cal. Water Code § 10726.6 (GSA may file action to determine GSP validity, but makes no binding determination); Cal Civ. Proc. Code § 830) An owner of water rights may find out that he or she or it has fewer rights than claimed, and all rights will be subject to more regulation in light of perceived “undesirable results” and the “reasonable and beneficial use” doctrine under the California Constitution.
Business blog #2
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Test
CALIFORNIA FARM LAW
Federal Laws and Regulations
The federal government passes legislation, issues regulations, and establishes and supports policies that impact the agricultural and food processing industry on national issues, typically interstate in nature. Many of the laws and regulations that are passed at a national level are implemented by state and local governments, or agencies of the federal government in district, state, or local offices. The federal government also enters into cooperative and/or work-sharing agreements with state and local government to implement federal agricultural and food processing law and policy. The principal federal agencies at the national level that implement federal agricultural and food processing law are the United States Department of Agriculture (“USDA”), and the United States Food and Drug Administration (“FDA”), but there are many others.
The federal government and its agencies legislates and regulates in a wide variety of agricultural and food processing areas. The portion of the national budget attributable to the USDA was $144 billion in 2019 and $150 billion in 2020. These areas of endeavor include without limitation the following: crop subsidies (to counteract market swings in the agricultural industry); crop insurance; disaster relief (to offset the effect of natural disasters on agricultural production); land retirement programs (taking land out of production for environmental purposes); working land conservation programs (establishing land conservation practices on land that remains in production); grazing land programs (establishing conservation practices on grazing land); other environmental regulation (e.g., the Endangered Species Act and the Clear Air and Water Act); the regulation of Concentrated Animal Feeding Lots (CAFO’s); loans to agricultural producers (typically from the Farm Service Agency and/or the Farm Credit System); labor laws relating to agricultural production including but not limited to the Migrant and Seasonal Agricultural Worker Protection Programs; laws and regulations relating to stockyards (the Packers and Stockyard Act), laws and regulations concerning interstate brokers in fruits, vegetables, seeds, and nuts; laws and regulations relating to food safety and wholesomeness (administered by the FDA, the USDA, and other agencies); laws, regulations, and marketing orders concerning size, quality, containers, and marketing of agricultural products; and laws and regulations concerning organic foods (Organic Foods Production Act of 1990).
State Laws and Regulations
California takes the laboring oar in passing, implementing, and enforcing laws and regulations relating to the agricultural and food processing industries. California sometimes implements or enforces federal standards. The California Department of Food and Agricultural, as well as the California Department of Public Health and other agencies implement and enforce state law. Not infrequently, district, county commissioner, and local agencies also enforce state law.
California laws and regulations touching agriculture and food processing cover a wide array of subject areas, including the following; size, shape, quality, container, packaging, and marketing provisions; laws and regulations relating to plant quarantine; pest control; agricultural associations and district fairs and development activities; agricultural liens; processing standards and procedures; agricultural labor laws; animal ownership, rights and liabilities; boundaries and fences, conservation of agricultural law (e.g., Williamson Act); contracts; cooperatives (agricultural); direct marketing (farmer’s markets, farm stands, etc.); farm leases & sharecropping; labeling of agricultural product; marketing associations and cooperatives; nurseries and nursery stock; regulation of produce dealers; slaughterhouses; water rights.
Many of the foregoing laws and regulation are implemental or enforced by the Department of Agricultural pursuant to detailed provisions found in the California Food & Agricultural Code and related regulation. (California Food & Agriculture Code (“F&A”) sections 101 et seq.) In this regard, state food and agriculture administration is performed by the Department of Food and Agriculture under the Secretary of Food and agriculture as its executive officer, and by the state Board of Food & Agriculture. (F&A 102-104, 901) The Board inquires into the needs of the agricultural industry and, together with the secretary, confers with and advises the Governor as to how the department may best serve the industry and consumers of agricultural products. (F&A 951) The Board may conduct investigations and hearings, and prosecute actions concerning all matters and subjects under the jurisdiction of the department. (F&A 952) Local administration is by county agricultural commissioners, who are in charge of county departments of agriculture. (F&A 2001 et seq.) The legislature has also created certain councils and commissions to aid in the administration of specified phases of agriculture: examples include dairy, beef, and grapes. (See, e.g., F&A 6401 et seq. (dairy); F&A 64501 et seq. (beef), F&A 65500 et seq. (grapes))
The California Department of Food and Agricultural has the general duty to promote and protect agriculture within the state, (F&A 401), and to execute the provisions of the Food & Agricultural Code and other laws. (F&A 404) In addition, the Code provides for a number of specific duties, including without limitation, the following:
.the protection and development of agricultural production and rural agricultural economies (F&A 401.5);
the prevention of diseases and insect and weed infestations (F&A 403);
and support concerning agricultural practices, including without limitation sustainable agricultural practices and ecologically-based pest management alternatives (F&A 500, 501, 550 et seq,)
The department has the power to cooperate with the U.S. Department of Agriculture and other states in pest or disease investigations inside and outside the state in order to protect California’s agricultural industry, and for the purpose of the control or eradication of plant and animal diseases and pests. (F&A 481; 7 USC 450)
More generally, California in the exercise of its “police power” may enact and enforce reasonable and appropriate agricultural regulations in order to protect the general public and enhance the agricultural industry, including those enacted or enforced by the California Department of Food & Agriculture, or otherwise. Such laws and regulations include without limitation
.the licensing or registration of persons involved in various aspects of the agricultural industry, including operators of meat processing establishing, processors of farm products, dealers in pesticides and commercial fertilizers, persons engaged in pest control. (F&A 19010 et seq., 55521 et seq., 55481 et seq., 12811 et seq., 14591 et seq., 11701 et seq, 11901, 12101 et seq., 12251 et seq.)
.the development of standards for fruits, nuts, and vegetables, field crops, sees, seeds, and nursery stock. (F&A 42501 et seq., 52001 et seq., 52251 et seq., 53301 et seq.)
. the requirement of proof of ownership of person marketing fruits, nuts, or vegetables for commercial purposes over a specified quantity must provide the buyer or transport with proof of ownership. (F&A 861).
.the establishment of taxation and assessment for certain commodities, feed, pesticides, as well as the authorization of agricultural commission to establish their own assessments on agricultural producers.(F&A 15061, 12841 et seq., 68101 et seq. (kiwifruit commission), 73251 et seq. (naval orange commission), 75360 et seq. (apple commission)
.the establishment of criminal liability for a violation of any provision of the Food & Agricultural Code except as expressly provided. (F&A 9)
Local Laws and Regulations
Each county in California has its own department of agriculture under the control of the county agricultural commissioner. (F&A 2001, 2002) The commissioner’s duties include without limitation, cooperating in the study and control of agricultural pests, developing exhibits and other information for public dissemination of information concerning the work of the commissioner’s department, the resources of the county, or the products of the county. (F&A 2274, 2276, 2277, 2278, 2279)
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
The state legislature has attempted with sgma to vest primary authority for managing groundwater in local agencies. The state is the default authority.
“[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))
“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
“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
.Only medium and high priority basins
.SGMA does not apply to specified adjudicated basins.
.Water Code 10720.8
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))
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))
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))
Upon adoption of a GSP, the GSA shall submit the GSP to DWR for review.
(Water Code § 10733.4(a)
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))
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
“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))
ourt adjudications have been how groundwater rights in conditions of overdraft have traditionally been decided“
.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.
.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
“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)
.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.
Sustainable Groundwater Management Act
The Sustainable Groundwater Management Act (“SGMA”) was signed into law on September 16, 2014. (California Water Code Section 10720 et seq.). SMGA is intended to regulate California’s groundwater, something which has been up to the Act’s passage largely unregulated.
The need for groundwater management has grown over the years, spiked by years of drought and growth, encouraged by Proposition 1. California is one of last states in the west to have groundwater management at the state level. Previously groundwater scarcity and disputes were 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 forces California to do what would probably have happened anyway in court proceedings.
Federal Law re Agricultural Production
Federal laws and regulations are the base of the pyramid of laws and regulations impacting agriculture in California. The federal government passes legislation, issues regulations, and establishes and supports policies that impact the agricultural and food processing industry on national issues, typically interstate in nature. Many of the laws and regulations that are passed at a national level are implemented by state and local governments, or agencies of the federal government in district, state, or local offices. The federal government also enters into cooperative and/or work-sharing agreements with state and local government to implement federal agricultural and food processing law and policy. The principal federal agencies at the national level that implement federal agricultural and food processing law are the United States Department of Agriculture (“USDA”), and the United States Food and Drug Administration (“FDA”), but there are many others.
Sustainable Groundwater Management Act
The Sustainable Groundwater Management Agency (“SGMA”) essentially requires localities to set up Groundwater Sustainability Agencies (“GSA’s”) and Groundwater Sustainability Plans (“GSP’s”) for high and moderate priority basins, some in critical overdraft. If localities do not do so adequately, or in a timely manner, the State can step in. Areas of particularly acute overdraft include the southern San Joaquin Valley, but there are others. Examples of medium priority basins include the Santa Rosa Plain, the Petaluma Valley, and the Sonoma Valley Basins in Sonoma County. In such areas, GSA’s must be set up by June 30, 2017. GSP’s must be established by January 31, 2020 for basins in critical overdraft. GSA’s must be established by January 31, 2022 for medium and high priority basins not in critical overdraft. Basins in critical overdraft must achieve “sustainability” by January 31, 2040, and other medium and high priority basins must achieve sustainability by January 31, 2042.
Groundwater and Surface Water Rights
Rights to surface and underground water in California can be placed in four categories: pueblo rights (arising out of the establishment of pueblos such as Los Angeles while California was still part of Mexico), riparian or overlying (attaching to the land adjacent to a surface river or stream (riparian), or underlying land (attached to the land overlying groundwater)), prescriptive (appropriative after five years of open and notorious taking), and appropriative (neither pueblo, riparian, or overlying, and before the five year prescriptive period has run). These four categories are prioritized: pueblo owners generally having superior rights to overlying, riparian or overlying owners having superior rights to appropriative owners, and prescriptive owners having superior rights to appropriative (and in most if not all respect equal to riparian or overlying owners). Water rights are generally considered “usufructuary,” meaning that water cannot be owned per se, but only the right to its “use” and “fruits.” As a result of a 1928 amendment to the California Constitution, water rights are limited to reasonable and beneficial use. (Cal. Const. Art. X, § 2).
California Laws re Agricultural Production
California takes the laboring oar in passing, implementing, and enforcing laws and regulations relating to the agricultural and food processing industries. California sometimes implements or enforces federal standards. The California Department of Food and Agricultural, as well as the California Department of Public Health and other agencies implement and enforce state law. Not infrequently, district, county commissioner, and local agencies also enforce state law.
Sustainable Groundwater Management Act
California’s Sustainable Groundwater Management Act “(“SGMA”), states that “[n]othing 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.” (Cal. Water Code § 10720.5(b)) The meaning of this passage is not entirely clear, as Groundwater Sustainability Agencies (“GSA”), do have the right to regulate groundwater use, including limiting extractions of groundwater. It appears reasonably clear that although GSAs may not single-handedly determine groundwater rights, they may take actions that effectively determine groundwater rights, with courts stepping in to determine the validity of what the GSAs have done. (See Cal. Water Code § 10726.6 (GSA may file action to determine GSP validity, but makes no binding determination); Cal Civ. Proc. Code § 830) An owner of water rights may find out that he or she or it has fewer rights than claimed, and all rights will be subject to more regulation in light of perceived “undesirable results” and the “reasonable and beneficial use” doctrine under the California Constitution.