SUSTAINABLE GROUNDWATER MANAGEMENT ACT: THE LITIGATION BEGINS

If you thought that the 2014 Sustainable Groundwater Management Act’s (SGMA) addition of yet another layer atop California’s and the Southwest’s already highly layered and complicated water law wasn’t going to result in a bevy of litigation to determine access to the commodity that Mark Twain quipped was “for fighting, not drinking,” you were naïve.

After working with Ventura County’s Fox Canyon Groundwater Agency (FCGMA) to put together what the Agency termed “an equitable and comprehensive long-term plan for sustainable management of water resources,” a large class of Ventura County’s pumpers, primarily agricultural pumpers, have filed a class action suit to, as they put in their complaint, “serve as a catalyst for the many stakeholders, including FCGMA, to work together, with the Court’s supervision, in reaching a fair determination of water rights.”

The suit seeks clarification of title as well as declarative relief. There are other Defendants, including the Calleguas Water District and some cities, as well as Intervenors, including the cities of Ventura and Oxnard. Ventura County is among those groundwater basins the California Department of Water Resources (DWR) has identified as “critically over drafted” and thus subject per the 2014 statute to the adoption much sooner than later of a long-term sustainability plan.

The complaint is 28 pages. For those of you with a keen appetite for the subject, which is sure to be a subject of much litigation before we have a full understanding of just what the 2014 Act means in terms of managing the state’s groundwater infrastructure, you can click here to read it in full.

But what we see as the gist of the suit is the resolution of conflicts between the broad regulatory authority granted these Groundwater Sustainability Agencies and the Statute’s broad declarations about its provisions having not in any way changed the longstanding framework of groundwater pumping rights established by the California courts or groundwater rights under Common Law. Directly from the complaint:

“SGMA provides groundwater management tools and authorities to the GSAs, including powers to require measuring and reporting of groundwater extractions, limiting the amount of extractions, imposing fees for groundwater management, and enforcing the terms of a GSP. Importantly, however, SGMA did not change the longstanding framework of groundwater pumping rights established by California courts. See Garner et al., The Sustainable Groundwater Management Act and the Common Law of Groundwater Rights—Finding a Consistent Path Forward for Groundwater Allocation, 38 UCLA J. Env’t L. & Pol’y 163, 166-67, 185-98 (2020). Specifically, SGMA provides that “nothing in [the Act], or in any groundwater management plan adopted pursuant to [the Act], determines or alters . . . groundwater rights under common law.” Cal. Wat. Code § 10720.5(b). Similarly, SGMA affirms that a GSA-implemented limitation on pumping “shall not be construed to be a final determination of rights to extract groundwater.” Id. § 10726.4(a)(2). 32. In 2015, the Legislature enacted an additional statute (the “Groundwater Adjudication Statute”) to harmonize the sustainability goals of SGMA with common law water rights and the traditional role performed by the California courts in managing groundwater basins through a “physical solution,” a form of judicial remedy in such cases. See Cal. Civ. Proc. Code § 830 et seq. T.”

There is much more to be sure in the Complaint and sure to be much of keen interest in the Defendants’ Answer thereto. We’ll leave all definitive comment thereon and all resolution of these issues to the courts. We share it with you to notify you that there is not only much that remains to be resolved about the meaning and scope of the 2014 Groundwater Sustainability Act, there is much of that resolution that promises to seep out over time through court decisions – ultimately some key decisions by the California Supreme Court.

We have already gotten inquiries from golf courses about some of these conflicts and jurisdictional questions – inquiries that are just not amenable to simple or definitive answers. Amenable to solid legal arguments, yes. Amenable to solid rebuttals to those arguments, also yes. In other words, the lawyers will argue. The courts will decide. And the legislature will no doubt legislate further in clarification and codification thereof.

The good news for the Southern part of the state is the reality that other than Ventura County and a small slice of Northern Santa Barbara County, most of the state’s “critically over drafted” aquifers are in the Northern part of the state. The giant aquifer that serves the Coachella Valley golf community is not a high priority basin per SGMA and is by all objective measures in a state of consistent replenishment. The Santa Monica Groundwater Basin that serves some golf courses in Los Angeles’ westside is a medium priority basin that has recently reported that the ground underneath UCLA has actually risen in recent years. For much of the rest of the region, the basins are adjudicated; that is, their protocols have been long fixed by prior court decisions cum ongoing supervision.

Whether groundwater or Colorado River water, Mark Twain captured the spirit of our time well ahead of his time when he quipped, “whisky is for drinking; water is for fighting.”