CA WATER LAW SYMPOSIUM: Questions of common supply: SGMA requirements for interconnected surface water and groundwater

The Sustainable Groundwater Management Act (SGMA), passed in 2014, is California’s first statewide law that explicitly reflects the fact that surface water and groundwater are frequently interconnected and that groundwater management can impact groundwater-dependent ecosystems, surface water flows, and the beneficial uses of those flows.

SGMA requires groundwater sustainability agencies (GSAs) to manage groundwater to avoid six undesirable results, one of which is significant and unreasonable adverse impacts on beneficial uses of surface water. While this aspect of SGMA is clearly important, significant uncertainties exist regarding how GSAs will actually define and achieve this goal.  At the 2019 California Water Law Symposium, a panel of experts discussed the structure of SGMA and how it addresses these water connections, particularly in relation to fisheries and the public trust doctrine.

Seated on the panel:

Rick Frank: Rick Frank is a professor of law at the UC Davis Law School.  For many years, he was with the California Attorney General’s office and litigated a number of very important water and environmental cases.

Andy Sawyer: Andy Sawyer is Assistant Chief Counsel at the State Water Resources Control Board.  He manages the activities of the Office of Chief Counsel involving water rights and the drinking water program.

Paul Kibel: Paul Kibel is a professor at Golden Gate University School of Law.  where he teaches a broad array of environmental courses and directs GGU’s Center on Urban Environmental Law.  He is also counsel with the Water and Power Law Group and on the advisory board of the San Francisco Baykeeper.

Letty Belin: Letty Belin is an attorney who specializes in tribal water rights, water law, and other natural resource issues.  Letty served as counsel to the Deputy Secretary of the Interior in Washington DC, most recently a visiting fellow at Stanford’s Water in the West program.

The panel was moderated by Kevin O’Brien, attorney and partner at Downey Brand and organized by students at Golden Gate University School of Law.

BACKGROUND INFORMATION: GROUNDWATER-SURFACE WATER CONNECTIONS, GROUNDWATER LAW

Kevin O’Brien began with an overview of the technical concepts.  Back in the late 1800s and early 1900s, there was a notion that groundwater and surface water existed separately in the environment; this was reflected in California water law where there is a demarcation between so-called percolating groundwater and surface water, and there are two separate bodies of law addressing those two types of water, he said.

However, as our understanding of hydrogeology has evolved, it’s become increasingly clear that surface water and groundwater is most often interconnected;the pumping of groundwater often affects flow in surface streams, and sometimes diversions from surface streams affect groundwater conditions, groundwater levels, and potentially groundwater quality.  SGMA is an important step in the direction of integrating the two.

Surface water and groundwater systems are connected in most landscapes, and how the two interact depend on the physical conditions that occur in the basin.   Streams interact with groundwater in three basic ways:

• If the groundwater table is higher than the streambed, the stream will gain water from the groundwater through the streambed.
• If the groundwater table is lower than the streambed, the stream will lose water as water infiltrates through the streambed into the aquifer; if the groundwater table is low enough, the stream can become completely disconnected.
• If the groundwater table has large variations during the year, a stream segment could receive water from groundwater for a portion of the year and lose water to groundwater at other times.

Professor Rick Frank then gave a brief overview of water rights, starting with surface water rights.  There are two types of surface water rights recognized under California law: riparian water rights and appropriative water rights.

• Riparian rights are a result of ownership of land next to a watercourse; the landowner has a right to use water from that river on his land. Riparian rights are prevalent where precipitation is more abundant, such as in the Eastern United States. Riparian rights are correlative which means riparian landowners to a particular water source have equal rights among themselves to the available water and in times of shortage, must share that shortage on an equitable basis.  Even today and throughout California’s history, no permit has been or is required from the State Water Board to exercise riparian water rights.
• Appropriative water rights occur when water is diverted from the watercourse and used beneficially at a separate point. Appropriative water rights systems are utilized in virtually all of the more arid Western states.  Appropriative rights are the more prevalent type of surface water right in California.  There are three key elements to securing an appropriative water: an intent to divert, an actual diversion, and a commitment of water diverted from the lake, river, or stream to a beneficial use.  Unlike riparian water rights, appropriative water rights have a priority system based on first in time, first in right; those who secure and put to beneficial use an appropriative water right, those rights are senior to those of subsequent appropriators.

California recognizes both systems and is only one of only three states in the country that recognizes both appropriative and riparian water rights, said Mr. Frank.

Significant court rulings:

• In 1855, the California Supreme Court ruled in the case Irwin vs. Phillips that appropriative water rights in California were essential for mining, which at the time was the dominant economy of California.’
• Thirty years later in 1884, the California Supreme Court and the federal district court resolved the first environmental controversy in California state history when it enjoined hydraulic mining due to its adverse environmental effects.
• Two years later in Lux vs. Haggin, the Supreme Court affirmed the continuing viability and legitimacy of riparian water rights.
• In 1914, the California Water Commission, the predecessor to the modern State Water Board, was created which set up a permit system for appropriative water rights.
• In 1928, California voters approved an amendment to the California Constitution which is now known as Article 10, Section 2 which mandated reasonable use of water and prohibited waste of water which applies to all surface and groundwater resources in the state of California.

The courts have held that appropriative water rights can be put to use for a number of beneficial uses.

There are two categories of appropriative water rights in California: pre-1914 water rights which are not subject to the water board permit system because they were established before the California Water Commission was established and post-1914 appropriative water rights which came after the California Water Commission was established.

Water Code Section 102 codifies a key principle that all water in the state of California is the property of the public and is incapable of private ownership, so the people own the water.  Water rights are usufructuary which means it is the right to the use of water.  Nonetheless there are private property rights to water and water rights short of ownership, said Mr. Frank.

Turning to groundwater law, Mr. Frank noted that in California, there are separate systems of groundwater law and surface water law, which follows the legal fiction that groundwater and surface water are separate whereas in fact those resources are often interconnected.  However, he noted that both hydrologists and water lawyers know that this is really not true, and in many cases in many parts of the state of California, groundwater and surface water are often interconnected so that diverting one or pumping one can affect the other, so the question is, should those resources be treated in a consistent and consolidated way.

In California groundwater law, there are two categories of groundwater: subterranean water flowing in known and definite channels which is treated the same way as surface water and any diversion of those subterranean stream flows are subject to a permit from the Water Board; and percolating groundwater, which is the majority of groundwater and has never required a permit from the state of California.

Owners of land overlying a groundwater basin have rights to pump water from the groundwater basin for use on the overlying lands; similar to the riparian water rights system for surface water flows, the rights are correlative among overlying groundwater users – that is, they are common and are subject to what the California Supreme Court a hundred years ago referred to as the ‘common supply’ or ‘common source’ doctrine.  Those overlying users share the safe yield of the basin; safe yield is defined in the case as the amount of groundwater that can be pumped annually without causing an undesirable effect, said Mr. Frank.

If there is a surplus of groundwater beyond the needs of the overlying landowners, water can be pumped and diverted for use away from the basin, but that water is subject to appropriative water rights, similar to appropriative surface water rights, said Mr. Frank.  Among the appropriators, the first in time, first in right method of seniority applies. In disputes over groundwater between overlying landowners and appropriators, overlying groundwater pumpers have priority.

DOES SGMA CHANGE GROUNDWATER LAW?

“I leave you with two questions,” said Mr. Frank.  “How sensible is this system in the greater scheme of things? And second, with respect to SGMA, the legislature carefully and repeatedly said that SGMA is not intended to affect or change California groundwater law, so the question is, given that’s the legislative intent, is that in fact, accurate?  Does SGMA change California groundwater law?”

Andy Sawyer responded that the law is not quite as irrational as Mr. Frank has indicated.  “In the interest of time, he had to skip discussion of Hudson v Daly, 1909 case adopting the common source rule, saying that where groundwaters and surface waters are interconnected, the water rights interconnect, so that a senior appropriator to the surface water is senior to a junior appropriator to groundwater,” he said.  “I know of no case of where this has actually been followed, but the law is not quite as irrational as you might think.”

Mr. Sawyer pointed out that the problems the state has with surface water administration are worse as applied to groundwater.  “The ratio of appropriative to riparian rights is very high in surface waters; but the ratio of appropriative water rights to overlying rights is very low in groundwater, making it much harder to manage groundwater by appropriation,” he said.  “You also have timing issues.  With surface waters, you need flow at the right time, you need the flows when the fish need them, and you need the flows when the irrigator needs them.  In some rivers, it’s days between when a release occurs way up in the watershed and when it gets to the Delta.  For some groundwater diversions, it’s years or decades between when the pumping starts and when it has an effect downstream, and that’s going to make these timing issues very hard to deal with in groundwater.”

Paul Kibel noted that we could take the position that it doesn’t make sense today, given what we know, but in the historical context, there are reasons why it would have made sense.  “Let’s look at the year 1900,” he said.  “We didn’t have the ability to know where deep groundwater basins were or to pump the water at all, so groundwater accounted for a relatively small percentage of the overall portfolio of fresh water.  Most of what was pumped is what I call in my water law class, ‘Little House on the Prairie’ scenarios.  We didn’t have these larger basin disputes, so the way I view it, we were initially didn’t pay a lot of attention to groundwater law because we didn’t need to, we weren’t using much of it and there weren’t that many disputes.  The problem we find that’s not the conditions we face today, but we’ve inherited a sort of system that was an afterthought.”

Kevin O’Brien said he viewed this largely as an issue of politics.  “I practiced in Colorado in 5 years before coming back to California and in Colorado in the 60s, there was a recognition that groundwater pumping basically east of Denver on the Arkansas River and the Platte River was depleting the stream and having a lot of environmental impacts, and the state of Colorado in the 60s adopted basically a new water law that integrated so-called tributary groundwater with surface water, and after that, you had to go to the state to obtain a permit to pump a well.  Under that theory, there’s a number of Colorado Supreme Court cases where that was challenged unsuccessfully and ultimately that’s the direction Colorado went.  I think in California, the politics just have never lined up to take that issue on, and I’m not sure they ever will.  I think SGMA is kind of a work-around, and we’ll see how it works out after SGMA.”

“I think it’s a terrible basic setup of completely separating the two water law concepts,” said Letty Belin.  “I view SGMA as potentially a major step forward in weaving the two together and I think there’s a lot of potential for that to help weave a more coherent overall structure.”

SGMA AND UNDESIRABLE RESULT #6

Andy Sawyer then gave an overview of the Sustainable Groundwater Management Act (or SGMA) as it applies to significant and unreasonable impacts to interconnected surface waters.  He pointed out that some groundwater basins have made concerted attempts to manage groundwater.  “Where we have been managing groundwater, we have been managing almost without exception with disregard of effects on interconnected surface water,” he said.

In response to groundwater overdraft, subsidence, and other problems, the legislature in 2014 enacted SGMA which provides authority for local agencies to form Groundwater Sustainability Agencies to manage groundwater basins, adopt groundwater sustainability plans, and apply and enforce those plans, collect fees, and manage groundwater for their basins.

All groundwater basins designated as high or medium priority are subject to the provisions of SGMA (as shown in yellow and orange on the slide above, right).

Sustainable groundwater management is defined as managing the groundwater basin to avoid six undesirable effects, such as chronic lowering of groundwater levels, loss of groundwater storage, seawater intrusion, land subsidence, degradation of water quality, and the topic of this panel, significant and unreasonable adverse effects on beneficial uses and interconnected surface waters as a result of groundwater pumping.

SGMA set a deadline of June 30, 2017 for Groundwater Sustainability Agencies to be formed in high and medium priority basins, and that was accomplished with the exception of a few isolated areas where there’s not a lot of pumping.  Plans need to be adopted by 2020 for groundwater basins designated as critically overdrafted basins; all other medium and high priority basins have until 2022 to adopt their plans by 2022.  Those plans have to implement sustainable groundwater management within 20 years after adoption.

SGMA also provides for state intervention.  Mr. Sawyer noted that they don’t have to form GSAs and they don’t have to develop plans, but if they don’t, the state will.  “If they fail to adopt a plan or if DWR says the plan is inadequate or not being implemented, the State Water Board can declare the basin probationary after giving local agencies a chance, and the state can adopt a plan to prevent long-term overdraft or to avoid unreasonable impacts on beneficial uses of interconnected surface waters.”

After SGMA was enacted, some local agencies in areas that don’t have comprehensive groundwater management plans that said they were already sustainably managing their groundwater.  “Why would that be? Is it that they don’t have a problem?,” said Mr. Sawyer.  “In fact, they don’t have an overdraft problem for the most part.  Groundwater goes down with irrigation and it comes back up.  But that of course is depleting interconnected surface waters and, in fact, the magnitude of the depletion is enormous.”

Mr. Sawyer presented a graph showing the depletions from the Sacramento River, noting that it has gone from a gaining reach with close to a million acre-feet coming from groundwater into the stream bed and now it’s a losing reach of approximate 400,000 acre-feet.

“So you have well over a million-acre feet lost from the flow of the Sacramento River due to groundwater pumping in the Sacramento Valley,” he said.  “That’s on the scale of the overdraft occurring in the San Joaquin and Tulare basins, and of course overdraft is when you’ve gone beyond taking all you can at the expense of surface water and now you’re taking even more at the expense of other groundwater users.”

SGMA says that groundwater sustainability plans may but need not address impacts that were already occurring in 2015.  Mr. Sawyer warned that those agencies who are thinking they don’t have a problem may be ‘whistling in the dark’.

“The groundwater pumpers may think, we can pump a little more because it will recover next winter, but that in fact is a reduction in interconnected surface waters and that could end up requiring that something be done about it to prevent those increased depletions,” he said.  “The other point I want to emphasize is sometimes there’s delayed effects, and we have not even seen the full effect of the existing level of groundwater extractions, so there may be a problem with a depletion of interconnected surface waters, even if the local agency limits pumping to existing levels.”

FOR MORE INFORMATION:

• Interconnected Groundwater and Surface Water under the Sustainable Groundwater Management Act – Andy Sawyer 

HOW EFFECTIVE CAN SGMA BE IN ADDRESSING IMPACTS TO INTERCONNECTED SURFACE WATERS?

Mr. Sawyer then had two questions for fellow panelists.  One is, how important is SGMA if pre-2015 impacts on interconnected surface waters are exempted?  And often the surface water impacts are the result of multiple upstream basins and the basin boundaries sometimes is the river.  Given the complexity, is SGMA even going to be effective for post-2015 impacts?

Paul Kibel said that with respect to pre-2015 impacts, he disagreed with Mr. Sawyer on the limits it imposes.  He gave three reasons.  “First, the concept of grandfathering is with land use and it deals with whether existing land uses are lawful even if there have been changes in zoning code.  The concept of grandfathering has no application to a law like SGMA; SGMA is not dealing with land uses or even rights to water at all, so I think the idea of transferring the concept of grandfathering which is a land-use concept into SGMA makes no sense.”

“The second point is that some people have referred to that provision as a baseline condition, which is a concept which comes from environmental assessments laws like CEQA and NEPA,” Mr. Kibel continued.  “The concept of baseline conditions in an environmental impact assessment laws is you’re looking at a proposed project with new impacts and comparing it to baseline conditions.  That’s not what SGMA does.  SGMA is not looking at a new project and comparing it to baseline conditions.  In fact, SGMA is looking at baseline conditions and whether there are undesirable results happening as a result of those baseline conditions and then adopting a plan to address the problems with baseline conditions, so the idea of using that concept in SGMA doesn’t make any sense to me.”

“The third point is if you look at the actual provisions of SGMA, you’re required to do water budgets and hydrologic models that describe the inflow and outflow into the basin and its connection with surface waters, and to suggest that as long as those inflows or outflows are pre-2015, you don’t have to do them in the water budgets or the hydrologic models makes no sense,” Mr. Kibel said.  “If one of the undesirable results that we’re trying to avoid in SGMA is impacts on beneficial uses of surface waters, that includes fisheries, you have to adopt under SGMA thresholds to address those impacts.  If you were to interpret that language of about pre-2015 impacts is saying it gives you a pass on doing what SGMA explicitly requires you to do, I don’t think that’s a very coherent reading of SGMA.”

“If groundwater pumping is causing violation of federal laws and perhaps state laws, SGMA doesn’t immunize – it doesn’t make that go away,” added Letty Belin.  “Certainly I agree about the delayed impacts issue and I think it was Maurice Hall who said there was 400,000 acre-feet a year of delayed impacts that haven’t even kicked in yet on the Sacramento River, just to underscore how big that problem is.”

Kevin O’Brien pointed out that the 2015 baseline provision ultimately will be determined by the courts.  “I think we have this physical situation where pumping that occurred before 2015, the impacts of that may not show up in a surface stream until many years after 2015, and I personally think it’d be very difficult to ignore those impacts,” he said.  “One way or the other, I think these issues are going to have to be dealt with in the SGMA process.”

HOW TO IDENTIFY AND AVOID ADVERSE IMPACTS ON BENEFICIAL USES OF SURFACE WATERS

Sustainability under SGMA means avoiding the six undesirable results, including impacts to beneficial uses of surface water, but how does a GSA or anyone else know what is a significant and unreasonable adverse impact on surface water use, began Letty Belin.  She noted that it isn’t addressed in DWR’s regulations or in a Best Management Practice, so she decided to write a layperson’s guide to help GSAs understand how to avoid impacts to surface waters.

The guide, Guide to Compliance with California’s Sustainable Groundwater Management Act: How to Avoid the Undesirable Result of Significant and Unreasonable Adverse Impacts on Beneficial Uses of Surface Waters, uses a format of red light, yellow light, or green light.

“I try to identify red light circumstances where there’s a very high risk of having undesirable result #6,” she explained.  “Yellow light, you may have problems there and you may need to do more analysis and look further into it.  Green light, you’re probably good to go for now, but maybe not in the future.”

As she developed the document, she was guided by two overarching principles: The first was that existing legal frameworks, such as laws, regulations, and court decisions provide the clearest guidance on what constitutes undesirable result #6.  The second was that groundwater use that causes or contributes to a violation of state or federal legal requirements relating to beneficial uses of surface water almost certainly constitutes undesirable result #6.

The guide discusses the various circumstances most likely to cause unreasonable and significant impacts on interconnected surface waters.  Ms. Belin then discussed some of them.

The Endangered Species Act

The two most pertinent provisions in the federal Endangered Species Act are Section 9 which prohibits persons from unlawful take of listed species, and section 7 which requires federal agencies avoid jeopardizing the continued existence of listed species and/or adversely modifying habitat that has found to be critical for the species.

“Even though that provision doesn’t technically legally applied to GSAs because they aren’t federal agencies, in my opinion, if you have those circumstances – if you see jeopardy, if you see modification of critical habitat due to groundwater pumping, the GSA has a serious problem, and if it’s for sure causing that, it’s definitely is a red light problem, in my opinion,” said Ms. Belin.

Instream flows

Instream flows can be by either federal or state statute; where groundwater pumping interferes with achieving minimum flow requirements, that is a serious problem that needs to be addressed, Ms. Belin said.  “In some cases, the Department of Fish and Wildlife has proposed instream flow requirements but they have not been formally adopted. I put that in the yellow light category; you’d better keep a close eye on that because that’s a problem in the making.”

Wild and Scenic Rivers

Rivers can be designated as ‘Wild and Scenic’ under either federal or state law.  “If the evidence shows that groundwater pumping is impairing flows of a river stretch that has been designated as Wild & Scenic, it’s likely to be a serious problem,” said Ms. Belin.

“Not necessarily, if it’s only reducing water flows a little bit during high flow times of the year, it may not be a problem, but the most important guidance would be the statutory language of the designation and any related plans, history, other documents that talk about the values of the river that the designation is intended to protect.  And also, just the extent of the impairment caused by groundwater pumping.”

Groundwater pumping that causes/contributes to violations of surface water rights or resources

Another category of potential problems are violations where pumping causes or contributes to violations of other legally protected surface water rights or resources.

The first case is senior surface water rights.  “It’s a relatively small group of surface water rights that would be considered senior to groundwater overlying groundwater pumping rights,” Ms. Belin said.  “The foremost one I’d flag is federal reserved water rights.  They would apply to Indian reservations, federal reservations for National Parks, and other special protected areas.  Tribal treaty and fishing rights would also fall in that category, and potentially the adjudicated state based pueblo water rights down in the southern part of the state.  So it’s not a lot of senior surface water rights but something that needs to be considered.”

The second one is adverse effects on groundwater dependent ecosystems protected under public trust.  (She did not elaborate further on this point as this was a subject of another panel at the symposium.)

Ms. Belin had a few more observations.  “In many instances, for the first round of developing the initial groundwater sustainability plan, the GSA just may not have enough data to understand what’s going on,” she said.  “It will take time to acquire that data, and so the obligations of a GSA are likely to evolve over time.  They may evolve because as data is acquired, they may evolve because of delayed effects on surface water from groundwater pumping, or for other reasons.”

“A second issue is that in many instances, even if groundwater pumping is a factor contributing to the problems with the surface water, there may well be other contributing factors as well,” she said.  “So that really counsels to outreach among the various responsible parties, GSAs and others, to collaborate and coordinate and help deal with that because there is no easy answer to allocating responsibility, so collaboration and coordination is definitely called for.”

Ms. Belin closed by referencing a paper authored by Maurice Hall and Christina Babbitt which recommends maintaining groundwater levels at 2014 levels.  “They recommend it as a first order of compliance or avoidance of undesirable result #6 is to maintain groundwater levels at that level and don’t go below, and I think that’s a great start but it’s not the end of the story for all the reasons that we’ve been discussing – that there can be delayed impacts.”

FOR MORE INFORMATION …

• Guide to Compliance with California’s SGMA (Summer 2018), Alletta Belin

DRAFTING SGMA GROUNDWATER PLANS WITH FISHERIES IN MIND

Paul Kibel then focused his presentation on how reduced flows in surface waters from groundwater pumping can have instream impacts that impact fisheries, such as salmon and steelhead trout.

In August of 2018, the Center on Urban and Environmental Law (CUEL) at Golden Gate University Law School released a report, Rivers That Depend on Aquifers: Drafting GMA Groundwater Plans with Fisheries in Mind, which focused on aspects of SGMA that relate to fisheries impacts.  Mr. Kibel noted that much of his presentation will be a highlight of material that is given more in-depth treatment in the guidebook.

Under California water law, surface waters have historically been regulated as if they were hydrologically unconnected to groundwater, yet many rivers in California that support fisheries such as salmon and trout are hydrologically dependent on tributary groundwater to maintain instream flow.  When there is intensive pumping of tributary groundwater, the result can be reductions in instream flow and damage to fisheries.

SGMA’s sixth undesirable result relates to beneficial uses of surface water, and State Water Board Bulletin #16 provides a list of recognized beneficial uses.  In particular, three specifically relate to fisheries:

• Supporting ‘cold water ecosystems including but not limited to preservation or enhancement of…fish’
• Supporting ‘high quality aquatic habitats suitable for reproduction and early development of fish’ (Early development can be understood as spawning and downstream migration, Mr. Kibel clarified.)
• Supporting ‘habitats necessary for migration or other temporary activities by aquatic organisms, such as anadromous fish’

“This is relevant is that when you read the provisions of SGMA dealing with avoidance of the undesirable result #6, if you understand the definition of beneficial uses, then SGMA requires avoidance of adverse impacts on fisheries because fisheries are within the beneficial use,” he said.

Mr. Kibel said that as has been explained previously, that when the groundwater table is higher than the stream bed, the stream gains water from the groundwater and when the groundwater is lower but still interconnected, surface water will flow into the aquifer.

“What I want you to keep in mind is that this is not static, either geographically or temporally,” he said.  “Along a given stream or creek, you may have certain portions of that stream or creek that are gaining and you may have certain portions that are losing.  So it’s a complex interaction; it’s not simply is this a gaining stream or is it a losing stream, it made be both a gaining and a losing stream on different reaches of the watercourse.”

“Secondly, whether a stream is gaining or losing overall in particular reaches can change temporally,” he continued.  “It can change temporally, it can change during times of the year based on when it’s dry or when it’s raining or when there’s pumping, and it can change during drought years, because when there is less recharge and more pumping going on, a stream can flip from a gaining stream to a losing stream.”

This relates to the provisions of SGMA that deal with development of hydrologic models and water budgets which need to be robust enough to capture this.  “The capture the concept of gaining streams and losing streams is not static temporally, and actually we need them to be robust enough that they track how they work across the length of the different reaches of the watercourse,” he said.  “Why do we need to do that? Because if we don’t do that, then we don’t have the basic information to avoid undesirable result #6, so that’s how the two pieces fit together, at least in my mind.”

Mr. Kibel also noted that in general when dealing with overdraft, the particular lateral location of a groundwater well doesn’t matter that much as it’s really the overall extractions and recharge that are at issue.  However, the location of a well can be critical when dealing interconnected surface waters due to cones of depression.

“When you have a groundwater well that is in close proximity to surface waters, you can actually draw down the elevation of the groundwater table in the very area where it’s interacting with the surface water and that will change it from a gaining stream to a losing stream, so I’m also going to suggest that if we really want to deal with undesirable result #6, we need hydrologic models and we need water budgets that are robust enough that they capture this,” he said.  “Part of what might go into a plan if we’re trying to avoid adverse undesirable result #6 is to look at the relocation of wells so that cones of depression don’t have these impacts on surface streams.”

So what are the particular impacts on surface flows that matter if you are a steelhead or a salmon?  “The first is water temperature,” Mr. Kibel said. “At least for cold water fisheries like trout and salmon, best for them if the water temperatures remain below 56 degrees, between 56 and 60 degrees they start to suffer, and once they start to move above 60 degrees, they turn from struggling to lethal.  Particularly during hot portions of the year or with climate change or with drought, groundwater tends to be cooler, so it’s not just the volume of water coming in that’s tributary from groundwater, it’s that its cold water.”

He noted that temperature impacts are important, which has implications for hydrologic models, monitoring, and setting thresholds.

Secondly, there are certain times of year when the needs of fish for aquatic conditions and flows are more acute, particularly during periods when they are spawning and during downstream migration.  “It’s very important to keep in mind that we really need to focus on whether the depletions are happening at those times of year when the fish most need it,” he said.  “Connectivity is also important.  We want to make sure that we’re not taking streams or creeks that are tributary to the mainstems and depleting them such that they become isolated.”

He noted that there are very specific provisions in the CEQA regulations and the guidance documents that have been put out by DWR that use terms like ‘shall’ and ‘must’ deal with the issues of time and location of when there is depletions of surface water.  “It’s not something you can think about considering for political reasons, you are actually required to,” he said.

Mr. Kibel pointed out that very robust models and software have been developed and can model all of this.  “The USGS has come up with models for modeling the impacts of groundwater pumping on stream flow, and they have really sophisticated regression models that you can do this with incomplete datasets, so if the position taken in the GSP is ‘we’d really love to do this, but we just don’t have enough data’, the USGS has been doing this for ten years.  And in California, we also have models for modeling how reduced surface water depletion impacts salmon, in particular the salmon model and the IOS model, so if you take those two pieces together, it’s really feasible to do this.  SGMA requires that it be done, and it’s important that it be done.”

FOR MORE INFORMATION …

• Rivers That Depend on Aquifers: Drafting GMA Groundwater Plans with Fisheries in Mind, Paul Stanton Kibel and Julie Gantenbein

THE SCOTT RIVER LITIGATION & ITS LEGACY —GROUNDWATER AND THE PUBLIC TRUST DOCTRINE

Rick Frank then discussed the recent published California Court of Appeal opinion on the Scott River litigation that is the most recent published case on groundwater law on the public trust doctrine in California and the first reported decision on the Sustainable Groundwater Management Act; it’s also one of the few modern decisions that expressly deals with the issue of interconnected groundwater resources.

He also noted that in the interest of full disclosure, he was one of the counsel who represented petitioners in this case.

The public trust doctrine in essence provides that certain natural resources are incapable of private ownership and are held in trust for benefit of current and future generations.  There’s an affirmative obligation associated with the public trust doctrine in California at least that the government managers are trustees of public trust resources and have an affirmative obligation to manage those resources with the goal of long-term protection and preservation.

“I would argue that the public trust doctrine incorporates a principle of sustainable development as a core principle of  SGMA, as well as principles of intergenerational equity,” said Mr. Frank.

Traditionally the public trust purposes were deemed to be the traditional trilogy of commerce, navigation, and fisheries; however, over the last 50 years or so, public trust purposes and uses have expanded to include environmental preservation, ecological study, open space, and recreation.

Natural resources subject to the public trust were traditionally tied to submerged lands off coastal areas, the beds and banks of navigable lakes and rivers, and fish and wildlife resources.  In the last quarter century, those resources have expanded considerably, most notably with the California Supreme Court’s decision in the iconic Mono Lake case, formally known as Audubon Society v. Superior Court.

“It expressly held that the public trust doctrine applies to California water as a consumptive resource and that the State Water Resources Control Board must consider the public trust doctrine as it allocates scarce water resources among competing users,” said Mr. Frank.  “It rejected the notion advanced by several parties in the litigation that the public trust doctrine was somehow subsumed into the water rights law administered by the Water Board.”

The key factual claim in National Audubon relevant to the Scott River case is that the City of Los Angeles obtained permits from the Water Board to divert non-navigable streams in the Eastern Sierra that if left undiverted, would have flowed into Mono Lake.  The allegation was that those diversions were lowering the lake level of Mono Lake and causing all manner of degree of environmental harm to the Mono Lake ecosystem and that is the factual context in which the California Supreme Court reached its decision.

Mr. Frank then turned to the specifics of the Scott River case.  The Scott River is located in Siskiyou County along the Oregon border and is an important tributary to the Klamath River.  The Scott River, when healthy, is an important recreational resource for rafting, canoeing and other water recreational activities, as well as an important source of salmon habitat for salmon migrating up the Klamath River and then up the Scott River to spawn, as well as they migrate back down backstream into the ocean.

As a result of increased groundwater pumping in the Scott River valley adjacent to the river, which has increased considerably in the last 10 to 20 years, the Scott River has been dewatered substantially with the predictable deleterious impacts on public recreational opportunities and devastating the salmon population of the Scott River.

“Exacerbating the problem or some would say causing the problem to a considerable degree, Siskiyou County took the position that issuing groundwater wells to any farmer or rancher that wanted one was a ministerial act of the county that required no discretion and no judgement on the part of Siskiyou County,” said Mr. Frank.  “My clients, the Environmental Law Foundation and the Pacific Coast Federation of Fishermens Association, a commercial fisheries organization and a fisheries think tank, joined together to file suit in Sacramento Superior Court back in 2010.  At the time the respondents on the other side of the lawsuit were the Siskiyou County and the State Water Resources Control Board.”

The key factual claims in the complaint which were undisputed by the other parties is that the Scott River is a navigable river in California, there is an established hydrologic connection between the surface flows of the Scott River and the groundwater resources of the Scott River Valley, and that the Scott River has experienced dramatically reduced flows as a result of expanded and unregulated groundwater pumping in the Scott Valley, resulting in the deleterious impacts on recreation and salmon populations.

The key legal claims made by petitioners were that the State Water Board and the County both have the authority under the public trust doctrine to protect the trust resources of the Scott River region; that both agencies had previous before the lawsuit was filed, administratively disclaimed the authority or obligation to do so regarding the groundwater resources; and that the Court should issue an order requiring that the Scott Valley groundwater be managed consistently with the public trust doctrine.

“Over the course of the litigation with the trial court, the State Water Board realigned itself and from the standpoint of the petitioners, happily we had a congruent position and only Siskiyou County was on the other side of the lawsuit,” said Mr. Frank.

Last August, the California Court of Appeals in Sacramento issued its opinion in this case after 10 years of litigation.  “On the merits of the matter, the court held that the public trust doctrine is in fact applicable to extraction of California groundwater that adversely affects a navigable waterway such as the Scott River,” he said.  “It then dealt with a defense that Siskiyou County had raised relatively late in the litigation, that with the legislature’s passage of SGMA in 2014, the statute had effectively displaced and subsumed the public trust doctrine as it might arguably and otherwise relate to groundwater; that SGMA had occupied the field, and there was no place in California water law remaining for the public trust doctrine with respect to the state groundwater resources.  The California Court of Appeal had little trouble rejecting that claim with direct reliance the National Audubon Society a quarter century earlier.”

“Last but certainly not least, the Court said that both the Water Board and local governments including Siskiyou County have an affirmative duty and obligation to protect the public trust values and groundwaters, at least as they affect interrelated surface water flows,” he said.

The County’s petition for review to the California Supreme Court was denied by the California Supreme Court in late November of last year, so the decision is final.

FOR MORE INFORMATION …

• Environmental Law Foundation v. State Water Resources Control Board (September 2018)
• Public Trust Doctrine & Groundwater Resources, Legal Planet – Richard Frank

POST-SCOTT RIVER LITIGATION, HOW DOES THE PUBLIC TRUST DOCTRINE INTERRELATE WITH SGMA?

Rick Frank then posed the question to his fellow panelists, now that the decision is made in the Scott River litigation, exactly how does the public trust doctrine interrelate with the requirements of SGMA as it relates to interconnected groundwater?

Andy Sawyer began by clarifying the State Water Board’s position.  “I don’t think there was a realignment, I think there was a misunderstanding.  Our position always was that we had the authority but we didn’t have to do anything because we had prosecutorial discretion.  I don’t think that difference as to whether how much discretion we have has been resolved.”

“In response to the questions, I think the public trust doctrine and SGMA integrate in two ways,” continued Mr. Sawyer.  “One is the baseline.  SGMA says that a groundwater sustainability plan may but isn’t required to deal with pre-2015 impacts.  The Scott River was all pre-2015 impacts, the lawsuit was filed well before then, so SGMA doesn’t require the GSA to deal with it.  But they have an independent obligation to deal with a fair amount of beneficial uses in the interconnected surface waters, that language saying they may allows them to use the SGMA plan to deal with the issue, and that was the Water Board’s problem all along.  There was no doubt public trust was impaired, there was no doubt we had authority, but the mechanics of how you apply it to this very large number of groundwater pumpers, some of whom are in adjudicated basins, some not, are extraordinarily complicated.  Under SGMA, if a local agency wants to solve a public trust doctrine or is under court order to do so, they can use SGMA to do so.”

Mr. Sawyer said the independent authority of the board still applies with respect to public trust authority as well as the authority to enforce waste and unreasonable use with respect to pumping groundwater so much that it’s impairing certain interconnected surface waters.  “But I think largely these problems are going to be addressed independent of SGMA, in part because of that 2015 baseline,” he said.

Paul Kibel offered two thoughts.  “The first is that I actually think the tale of what happened in the National Audubon case provides a good road map to how to integrate the public trust doctrine with SGMA.  Recall in that case they said yes, the State Water Board administers an appropriative water rights permitting system, but in undertaking its permitting activities, the public trust overlays its administrative permitting activities, and that’s what it sent back to the Water Board to do.  I think similarly you can read the Court of Appeal decision in ELF to say, under SGMA, we’re going to be developing Groundwater Sustainability Plans and Groundwater Sustainability Agencies are going to be doing that, but in developing and implementing those plans, what they do under SGMA is overlaid by the public trust doctrine.  We can argue what that means, but I think that’s coherent and in terms of what it means, I would look to that language in National Audubon about fully protecting public trust resources and uses whenever feasible.”

“So if its feasible to do a water budget and a hydrologic model that captures the impacts on surface waters and fisheries, the public trust requires you to do it,” he continued.  “And if it’s feasible to develop minimum threshold standards under SGMA that address those and restrictions, I would argue that the public trust requires you to do it.”

“The second comment I have is that I think when you look at the language in SGMA that talks about not required analysis of pre-2015 impacts, I’d really focus on that word impacts,” continued Mr. Kibel.  “It doesn’t say pre-2015 pumping, and it doesn’t say that pumping that occurred before 2015 can continue.  I think the more coherent way to read that language is that SGMA does not require plans to address impacts that are wholly in the past, so if all the impacts occurred before 2015, yes, SGMA is not a remedial statute that requires that.  But if there are impacts that began in 2015 and are ongoing and are continuing, I think you can interpret that language to say there’s nothing in SGMA that would take away the obligations that seem apparent under all the other provisions, such as water budgets and hydrologic models to address it, so I think by focusing on past versus ongoing impacts is a way to interpret that language in a way that is consistent with the purposes and the other provisions in SGMA.”

AUDIENCE QUESTIONS

A question from an audience member (which is mostly indistinguishable because he did not wait for the microphone to ask his question), it had something to do with applying the public trust doctrine to get groundwater basins to restore fish habitat that once existed.

“That’s why there’s the 2015 baseline,” replied Andy Sawyer.  “I may be too close to this, because I actually drafted that language, but believe me the alternative was much worse.  The previous draft defined undesirable effects to exclude pre-2015 impacts which meant SGMA couldn’t even be used even if the agency wanted to address pre-2015 impacts.  And some pre-2015 impacts simply cannot be reversed such as subsidence; it may be physically possible, but its not going to happen, to have these basins that were disconnected 70 years ago stop pumping so the groundwater levels come up hundreds of feet to reestablish the connection.  Now you can argue about whether that’s feasible, but certainly the economic impacts would be enormous and there would be zero chance SGMA would have been enacted if there was a requirement to restore those conditions.  But if you have an agency that wants to deal with pre-2015 conditions or, for example, Siskiyou County where there’s a lawsuit that says you have to, why not use SGMA to do it instead of other much more cumbersome and less effective ways of implementing the public trust.”

Question: Did Rick outfox you by having the ELF case succeed in court?

“I put in the 2015 baseline because that’s the best I could get,” said Andy Sawyer.  “But outfoxed … ?  And as for does SGMA preempt, who do you think drafted that statute?  No, there’s specific language in there saying independent authority is preserved, so no, I think the way I read the case, the public trust applies and we have the authority to deal with these impacts.  What the water board was really nervous about is a mandatory duty where anybody can sue us anytime and say, you haven’t solved this problem yet so I get a court order for you to spend resources you don’t have to solve the problem I identified.  So certainly not outfoxed.  We’re very happy with the result.  It comes out very consistent with our briefs.”

Kevin O’Brien then took a different position, noting that he is the only one on the panel that represents water users.  “In my opinion, the public trust doctrine has been one of the most toothless tigers the last 25 years, and will continue to be, because what the public trust doctrine requires in this context is balancing,” he said.  “If I’m representing a county or a GSA or some other entity that has responsibility over these resources and is making very difficult decisions balancing consumptive uses versus public trust uses, I don’t think it’s that hard in most factual contexts – not all, but in most to build an administrative record and to make a determination that it is not feasible under this set of facts to protect public trust uses as Audubon requires because of the impacts on other uses.  And that’s essentially a policy call, that if you make the right administrative record, you should be sustained by the courts.”

Mr. O’Brien acknowledged there are some factual contexts where that’s not possible, but in a lot of the contexts we deal with, it’s not a clear cut situation.  “Ever since Audubon came out, I’ve been hearing about how important the public trust is in terms of actual changes on the ground, but I haven’t seen it and I don’t think we’re going to see it as a result of the ELF case.”

Rick Frank then offered a few thoughts in closing.  “The ELF case is, by my own admission, an incremental step.  The next big question that I think the courts will have to face is does the public trust doctrine apply to groundwater in general, even where it’s not interconnected.  And in the meantime, the provocative thought that I would leave you with is that at least in my opinion, in the wake of the Scott River opinion, that GSA are trustee agencies as they move forward.”

FOR MORE INFORMATION …

• Interconnected Groundwater and Surface Water under the Sustainable Groundwater Management Act – Andy Sawyer 
• Environmental Law Foundation v. State Water Resources Control Board (September 2018)
• Public Trust Doctrine & Groundwater Resources, Legal Planet – Richard Frank
• Rivers That Depend on Aquifers: Drafting GMA Groundwater Plans with Fisheries in Mind, Paul Stanton Kibel and Julie Gantenbein
• Guide to Compliance with California’s SGMA (Summer 2018), Alletta Belin
• Panel Power Point

 

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