Critically overdrafted groundwater basins submitted their Groundwater Sustainability Plans (GSPs) in January 2020, and high and medium priority subbasins will be submitting their GSPs in 2022. At the Environmental Law Conference at Yosemite, a panel provided an update on Sustainable Groundwater Management Act implementation, including issues being litigated in first impression lawsuits across the state. Best practices for groundwater allocation and trading, and incorporation of environmental justice concerns into GSPs. How agencies address CEQA compliance for GSA Project and Management Actions were also discussed.
The panelists:
Eric Averett, general manager of Roseville-Rio Bravo Water Storage District: Since 1991, Eric has been actively involved in evaluating and resolving water supply and quality challenges facing Kern County. Eric Averett serves as president of the Kern River Watershed Coalition. He sits on the board of directors for the Water Association of Kern County and the Association of California Water Agencies.
Camille Pannu, a visiting clinical law professor at the Community and Economic Development Clinic at UC Irvine School of Law: Prior to joining UC Irvine, she served as the inaugural director for the Water Justice Clinic at UC Davis School of Law, the first clinic of its kind in the country. Her practice uses administrative advocacy, strategic research, and transactional legal tools to address the impact of racial and economic inequality on access to clean, safe drinking water in California’s low-income communities.
Tom Lippe, public interest environmental law attorney: He has been actively involved since 1987 in cases dealing with land use, CEQA, NEPA, surface water, groundwater, coastal protection, and endangered species. Mr. Lippe’s practice has included many cases involving the effects of land-use changes on groundwater resources and the effects of groundwater consumption on streamflow and endangered salmonids. Mr. Lippe is currently litigating two cases challenging groundwater sustainability plans adopted under the Sustainable Groundwater Management Act for the Eastern San Joaquin and Delta-Mendota groundwater basins.
The panel was moderated by Natalie Stork, chief of the Groundwater Management Program at the State Water Resources Control Board, which is responsible for the board’s implementation of SGMA.
The basics of the Sustainable Groundwater Management Act
To set the stage, Ms. Stork began by reviewing the basics of the Sustainable Groundwater Management Act, also known as SGMA. SGMA was passed in 2014 and went into effect on January 1, 2015, and required several things.
The first requirement was for all basins subject to SGMA to form a Groundwater Sustainability Agency or GSA by June 30, 2017. The basins subject to SGMA are the medium and high priority alluvial groundwater basins in the state as determined by the Department of Water Resources. Virtually all basins met that requirement; there was 99% compliance.
The next requirement is to develop a Groundwater Sustainability Plan (or GSP). The critically overdrafted basins had to have the GSPs developed and submitted to DWR by the end of January of 2020. Next, the rest of the medium and high priority basins submit their plans to DWR in January 2022. DWR has two years to review the plans. Meanwhile, the basins have to implement their GSPs and start moving towards sustainability. Under the terms of the legislation, the basins have 20 years to reach sustainability.
Ms. Stork acknowledged that sustainability is a bit of a nebulous term, so what does that really mean? “The statute, fortunately, defines sustainability for us as a basin being operated within its sustainable yield and not experiencing these six undesirable results,” she said. “Undesirable results are significant and unreasonable occurrences of six things caused by groundwater conditions occurring throughout the basin. What’s significant and unreasonable is determined by the locals at the local level, and where they do that is in their groundwater sustainability plans. Those plans are evaluated by DWR and implemented by the local agencies.”
One important component of the groundwater sustainability plans is sustainable yield, which the statute defines as the maximum quantity of water that can be withdrawn annually from a groundwater supply without causing an undesirable result.
The critically overdrafted basins submitted their plans to the Department of Water Resources in January of 2020. The Department is currently reviewing those plans. The rest of the SGMA basins are currently developing their plans; those plans are due in January of 2022, except for the three basins that submitted their plans early to the Department of Water Resources. Once a GSA submits their plan to the Department, they have to start implementing those plans.
ERIC AVERETT: Groundwater Sustainability Plan Implementation: Challenges and Opportunities
For the first time, the Sustainable Groundwater Management Act introduced constraints on the amount of groundwater that can be pumped for overlying use, which comes with both challenges and opportunities. Eric Averett noted that his presentation represents his perspective from one Groundwater Sustainability Agency within arguably the largest and most complex groundwater basin in the state. While each basin could be considered unique, the issues he will touch on will likely be challenges and perhaps opportunities for every basin within the state.
Challenge: What is groundwater?
Early in the development of the groundwater sustainability planning process, it became clear that there was quite a bit of confusion regarding what exactly is groundwater as many with surface water rights in the region began asserting that their surface water diversions extended into the groundwater basin.
“For example, some in the basin question as to whether the return flow from agricultural irrigation was groundwater,” Mr. Averett said. “Those with surface water rights asserted that the diversion remained or retained its surface designation, while others claimed that the beneficial use of this diversion was met and in the absence of a groundwater banking project, that the water became part of the groundwater supply. I’m unaware of how this issue has been handled in either the courts or other basins which have developed GSPs, but at this time, we’ve not included that return flows as a component of the groundwater or sustainable yield.”
“Frankly, the limited time available between the formation of the GSA’s and the requirement to submit a plan left most of us with estimates as to what the amount of sustainable yield within the basin was,” he added.
Challenge: Allocating groundwater
Mr. Averett said that one of the greatest challenges within the SGMA process is that absent clear precedent, groundwater basins and their GSAs are left with uncertainty on how exactly to allocate groundwater. The slide lists some of the proposals that were advanced in his basin.
“My favorite is obviously the ‘Magic Subsurface Channel,’” he said. “In a meeting, I recall an engineer who represented one of the regions indicating that water levels in his area had not declined and so there must be some magic subsurface channel that was delivering water to his area. Not necessarily the case.”
Some in the basin have advanced allocating the groundwater based on historic pumping rates as there are users within the basin pumping for almost 100 years. Mr. Averett also acknowledged there is an equity argument to be made; he recalled that in a recent discussion, some pointed out that those who have historically utilized the groundwater basin (and some would argue abused the basin) will be able to continue to do so in greater proportion than those who have developed supplies.
“So a variety of positions leaves us with a little bit of confusion as to how best to allocate this very important resource,” he said. “Each position has been advocated based on self-interest for the region or the group that’s represented. However, when there are many competing interests, ultimately one must prevail, or we ultimately go to the courts.”
“We must balance the two to achieve sustainability: supply and use,” he continued. “Ultimately, SGMA is the balancing of supply both surface and groundwater with demand. It truly is as simple as that. In fact, when you review each of the undesirable results, I would argue that each is a symptom of overdraft or an unbalanced budget. If the basin is sustainable from a water budget perspective, then there are no undesirable results.”
So if the scale must be balanced, how does a GSA balance the needs of those competing interests? “I’ve heard on several occasions that SGMA creates winners and losers are haves and have nots,” Mr. Averett said. “I don’t think SGMA created this disparity; I think a daylighted it, and it calls for a correction.”
He acknowledged that his basin, like many others, has additional work to quantify the amount of sustainable yield accurately. They also have to develop the allocation approach. He thinks that it’s a wise strategy as it will allow additional time for more information to become available.
However, ultimately, an allocation of strategy must be implemented in each of the basins. “Instead of evaluating the merits or lack thereof of each of the various positions, I would like to present an alternative approach that may allow for flexibility, but also avoid protracted litigation and/or adjudications within each of these basins,” Mr. Averett said. “The approach is this: in the absence of local agreement on a method of allocation, the state legislates a default position of proportional to acreage. This legislative or regulatory default is only operative to the extent that the local GSAs cannot reach an agreement and/or constituents within the basin file for judicial relief. I recognize that there’s much about the legal and legislative process I do not understand or appreciate. But what I can appreciate is in the absence of default or precedent, I believe that highly likely that each basin within the state will be adjudicated at a significant expense.”
Challenge: Lack of water for recharge
Mr. Averett recalled how last year he was a speaker at a conference with a member of the State Water Resources Control Board, who presented the map shown on the slide as part of a presentation on an expedited permit process for groundwater replenishment programs. The map shows fully appropriated streams in red, and those with unappropriated water or water available in blue.
“I asked during the discussion, is there any point in getting a permit for high flow water in areas of red? He answered, No,” said Mr. Averett. “Now, the yellow area in the center is the high priority or critically overdrafted basins. The map paints a very stark reality. There is no surplus water available south of Madera, in much of the region that is currently critically overdrafted or high priority, so to expect to develop new supplies to meet the SGMA requirements of balanced water supplies is unrealistic. A review of the Kern County GSPs shows that over 350,000 acre-feet of deficit and the same amount of new groundwater replenishment projects are being proposed. However, there is no new water. And once the reality of that demand reduction, with very few exceptions, is the solution, then things will likely get very, very interesting.”
What are the opportunities?
The GSA will be required to implement demand reduction with water and other resources, and that will likely move the water towards the highest and best use, so who determines what is highest and best use? Mr. Averett emphasized that SGMA does not touch on surface water rights, and while the SGMA legislation provided some guidance. it left much open to the GSAs with respect to groundwater.
So recognizing that surface water is not part of this discussion and that groundwater, with few exceptions, is to be managed by the GSAs, what will happen?
“I believe with certain reasonable constraints, we can achieve sustainability, a robust economy, and a healthy environment and preserve the human rights to water,” he said. “But then again, I’m the president of the Optimist Club. So let me present a few ideas, some of which may offer an avenue to achieve the goals and objectives of SGMA while balancing the scale with limited supply and competing interests. Let’s talk about some of the tools which may be available or can be developed.”
Opportunity: Coordinate land fallowing
Mr. Averett said we must acknowledge demand reduction will occur primarily in the agricultural sector. So to avoid a patchwork of fallowed and economically worthless lands, each basin should coordinate any demand reduction, at least at the base level, to identify and retire the least productive lands with a strategy to convert those lands either into alternative energy opportunities or environmental benefits, such as habitat corridors or conservation easements.
“Anything short at this point in every effort leaves a patchwork of fallow lands, and frankly, is an economic opportunity lost,” he said. “Native yield from these coordinated demand management programs could be reserved by the basin to provide for low cost subsidized water for disadvantaged communities, and/or for environmental purposes.”
Opportunity: Transfers, exchanges, and water markets
Basins should facilitate the ability to transfer water and not strand the asset, he said.
“Transfers and exchanges of groundwater are required just as a freeway is required to move goods and services, and absent this ability, we limit the economic opportunity of the resource,” Mr. Averett said. “Water markets should be developed with clearly defined rules and constraints based upon the needs within the basin. For example, you can constrain the amount of price or the amount or price of water between users based upon agreed key parameters, such as constraining the distance of a transfer to avoid pumping depressions. Water markets can certainly be powerful tools if managed correctly and with sustainability in mind.”
The Rosedale-Rio Bravo Water Market
The Rosedale-Rio Bravo Water Storage District has developed a water market to facilitate in-district transfers and exchanges between landowners. The water market is a web-based platform built in partnership with the Environmental Defense Fund that provides landowners with their water budget information. The district’s water supply information includes sustainable yield, water provided by the district, and precipitation. The demand information is provided by satellite and is updated every three weeks.
“The water trading is a little bit more like Craigslist than it is NASDAQ, but it creates an opportunity to link willing sellers and willing buyers through the platform where they can begin negotiations with respect to their water purchases or sales,” Mr. Averett said. “The platform also includes a billing component to the extent a landowner’s water budget goes into deficit. We hope this tool developed with open-source software will be used by other GSAs within the state to inform landowner decisions regarding the management of water.”
He presented a screenshot of the water accounting platform, emphasizing that information is power and informs decision making. “We believe that educating and informing landowners within our district as to their water budgets will help them make important decisions regarding the management of this resource,” he said, noting that GSAs do not have groundwater rights; they work with landowners and constituents to manage the resource with the authority that is given to them by the enabling legislation. “While the first milestone of SGMA, the submittal of a GSP has been met, the challenges, as well as the opportunities, are still very much in front of us.”
In conclusion …
Mr. Averett acknowledged that the concept of local control embodied in SGMA is critical, but it must be tempered with a clear statewide backstop if any component of the GSP is inadequate.
“That baseline or backstop, whether it’s State Board intervention or a clear standard for allocation of groundwater gives us a solid footing from which to work from, with the hope that any alternative that’s developed at the local level is better,” he said. “Absent that concrete floor from which to launch, decades of confusion and litigation will likely be the alternative. Frankly, that’s just not acceptable.”
CAMILLE PANNU: Environmental Justice Considerations in Groundwater Sustainability Plans
Camille Pannu then reviewed some of the phenomena she saw with the development of the 2020 GSPs from an environmental justice perspective, particularly on the Central Coast and in the San Joaquin Valley, and how some of the deficiencies in the process may have resulted in plans that are substantively lacking.
Underrepresentation of DACs, Tribes, and Domestic Well Owners
She noted that with a significant number of GSAs, there was the underrepresentation of disadvantaged communities, tribes, and domestic well owners; very few of those groups represented in the actual GSA itself or even represented well on an Advisory Committee.
“For example, out of all GSAs who were considered to be a high priority or a medium priority basin and were required to file their plans in January of 2020, less than 15% included disadvantaged communities, tribes, and private domestic well, owners, meaning that the most underserved and also perhaps most vulnerable populations with domestic water needs were excluded from the analysis,” she said.
Throughout most of the state and certainly the San Joaquin Valley, over 90% of drinking water users rely in part on or entirely on groundwater for their supply, so missing this population has a significant effect on whether or not their concerns and their water budgets are taken into account, she pointed out.
Domestic Well Users Excluded
Most plans also excluded domestic well users as de minimis users. “Even when you had an entire community of domestic well users, such that you could identify that community and quantify the amount of water being used as a whole, several GSAs treated each of those landowners as an independent landowner and then found that their withdrawal or their draft was de minimis and so they didn’t account for the drinking water needs of those communities.”
She pointed out that it is especially troubling given how many well dependent communities went dry during the drought, particularly communities like East Porterville. She acknowledged that East Porterville is relatively well represented in their GSA, but they’re most known for having gone dry for over five years during the drought without replacement water as wells were sunk lower as the water table was drawn down.
“That’s a sizable community of about 1500 people or properties that are served by domestic wells and communities like that were excluded from most of the GSPs and the GSAs,” she said. “That, unfortunately, underestimates what the demand ought to be for those communities and where water should flow or needs to be protected in order to avoid undesirable results.”
DAC representatives were often side-lined
While acknowledging that she only reviewed a small subset of the plans, in the plans that she did review, oftentimes representatives from a disadvantaged community were placed on advisory committees where they did not have any real sway or any kind of power in their vote or they didn’t reflect the demographics of the rest of the folks around them.
“There were many cases in which there would be a resident who was higher income who might not be from a language or a racial minority, and that person would be appointed to the GSA or would be preferred over other representatives,” said Ms. Pannu. “I have no idea why, but we ended up with a lot of representatives who did not reflect the actual diversity of those communities, which was a bit troubling.”
Lack of language access
Ms. Pannu noted that the overwhelming majority of GSAs in critically overdrafted basins failed to translate their notices or draft plans or provide interpretation services. While some did a very good job of making sure that all of those things were available, a significant number of GSAs were located in areas where there were language minorities comprised over 40% of the local population or the population within its borders. She noted that GSAs are subject to the same language access requirements and laws as other local agencies. However, the threshold for translation and interpretation is higher than for state agencies.
“Even in areas where 40% of the population was language minority, we saw GSAs completely fail to even attempt to translate or provide notice, and as a result, you have a significant number of primarily Spanish speakers who are not well represented,” she said. “In addition, there are certain GSAs where there were significant language minorities in certain Asian languages, Arabic, and Tagalog. And those language minorities were also excluded from the process, which is troubling, in that it completely fails to consider what those communities needed.”
“Additionally, very few GSAs translated their draft plans, which means that there were very few opportunities for anyone to engage or respond to, even if they were paying attention and had plugged into the process,” she added.
Inadequate outreach and meeting accessibility
Ms. Pannu said that the lack of translation and language access also resulted in a lack of outreach and meeting accessibility. A small number of GSAs provided bilingual notice; a few also published that notice in local newspapers, but they tended to provide notice in print and tended to avoid large newspapers of record. Nearly all of them fail to utilize radio as a potential outreach mechanism.
“There were one or two GSAs that did avail themselves of radio and had better input and representation from residents of disadvantaged communities, and so I think it’s interesting to note that the method with which outreach is provided can make a significant difference in engagement,” she said.
She also noted that most meetings were held in governmental buildings in cities and were rarely rotated. By definition, disadvantaged communities tend to be outside of city borders; many are on the edges of cities, and transportation can be an issue.
“Particularly in large GSAs, where you have a significant rural population, failure to rotate where your meeting is held can be quite significant,” she said.
Several GSAs also failed to account for ADA accessibility or provide instructions for how to achieve ADA access for members of the public who wish to attend their meetings, which is a significant civil rights concern, she said. A small number of GSAs partnered with local grassroots organizations and appeared to have better representation and input from residents of disadvantaged communities as a result.
“Their feedback was at least included in the GSP even if it wasn’t attached to a project or a goal necessarily, and it was a bit unclear stakeholder feedback would be incorporated into measurable and actionable efforts within the plan.”
Efforts to subvert public participation
Finally, a minority of GSAs did a couple of things that seemed to be attempted intentional efforts to subvert public participation, said Ms. Pannu. In particular, several started holding advisory committee meetings where they had representatives less than the threshold for a core majority of the GSA representatives. Those advisory committees would then make recommendations, and then they would have meetings by electronic correspondence only in which they voted. When members of the public asked if they could attend advisory committee meetings, they were told that no, they couldn’t because those committees were not subject to the Brown Act. Regular meetings of the GSA where the public could attend were routinely canceled.
“This for me was particularly troubling because it indicates an intentional effort to subvert the public process, which really negates the purpose of SGMA,” she said. “SGMA really relies on local control and input, and if you are actively seeking to exclude input, you’re going to have significant problems with your end result.”
End result: Substantive deficiencies
As a result, Ms. Pannu said there were several substantive deficiencies across the plans:
Underestimation of residential water demand in rural areas: Several plans failed to account for rural water demand or residential water demand. While this demand is lower than agricultural demand, it was not represented at all, and often water that would have been allocated to those communities was reallocated to agricultural purposes instead. In several GSPs, there was an identification of disadvantaged communities but no identification of what they needed. Many plans rely on recharge offsets but did not consider how recharge, particularly agricultural recharge, might affect domestic water quality for groundwater, especially for shallow wells that tend to be more commonly used for private domestic wells.
Water quality/quantity nexus: Several GSPs included a disclaimer saying that water quality issues and the human right to water did not apply or were inapplicable to SGMA, which Ms. Pannu said was a subject of significant debate on whether that’s true, certainly concerning the human right to water. While some plans did include a human right to water provision, the vast majority instead adopted water quality disclaimers. She found this troubling for several reasons, including that water quality or degradation of water quality is an explicit and undesirable result in the statutory language of SGMA. She noted that there is also not an acknowledgment that continuing to overdraw water would decrease water quality and would likely result in significant problems. She pointed out that water quality standards tend to become more strict over time and the MCLs lower, but very few GSPs seemed to acknowledge that they may be adopting plans that would result in water quality levels that were in violation of MCLs or other standards that are significant for drinking water users.
Failure to integrate the human right to water: Very few plans failed to integrate the human right to water, which is troubling because the human right to water is not limited to surface water; it’s considered a beneficial use, at least in the statutory text for any source of water, whether its surface or groundwater. So the failure of the plans to safeguard domestic water against drought and other overdraft is quite concerning and was perhaps quite predictable given who’s represented and who’s not represented, Ms. Pannu said.
Climate change, drought, and recharge: Ms. Pannu said the big the biggest substantive deficiency across many of the GSPs was an inability to grapple with the reality of climate change and the role that climate change will play on surface water supplies, and particularly on how surface water supplies and drought will interact with groundwater demand. There are good data and information from how the most recent drought affected groundwater supplies, and yet very little of that information was meaningfully integrated into most groundwater sustainability plans.
“Many are relying on the idea of returned water or recharged from surface water, and which I’m calling now ‘voodoo recharge,’ because from what we can tell, there’s no actual quantifiable or increased amount of water that could be found,” she said. “A lot of the water that’s being applied is already overdrafted water, or its surface water, which we know will decrease in supply over time, particularly under current climate change models.”
TOM LIPPE: SGMA Litigation Challenging Groundwater Sustainability Plans
Tom Lippe’s presentation mainly discussed the litigation of groundwater sustainability plans under SGMA, but first, he discussed the California Environmental Quality Act (or CEQA) and how it intersects with SGMA to the extent that it does.
CEQA and SGMA
The adoption of groundwater sustainability plans by GSAs is exempt from CEQA review. However, CEQA would apply to any projects and management actions identified in a GSP where those projects or actions require discretionary approval by a government agency.
The county issuance of well construction permits and the relationship with CEQA to that county process came up in the Supreme Court decision in Protecting Our Water and Environmental Resources versus the County of Stanislaus. The court held that CEQA may apply to county approval of well construction permits, depending on the particular discretionary standards that govern that process in connection with the permit’s factual circumstances, Mr. Lippe said.
“One of the possibilities here is that as we move forward, to the extent CEQA is applied to well construction permits, and I think eventually it will be applied to many, that it will be a forum to incorporate information that’s developed in the GSPs through the SGMA process,” he said. “The information flow will also end up going the other way in that site-specific permit applications will, because of the CEQA process, generate information that’s more site-specific than what the GSPs are typically looking at. Therefore, there will be the informing of GSP amendments and evolution because the GSPs are supposed to be relooked at periodically and reformulated. So as the future unfolds, there’s the potential at least for an ideal scenario in which those two processes provide information to the other process.”
Mr. Lippe also pointed out that the GSPs are planning documents that are supposed to calculate the sustainable yield of a basin based on groundwater supply and demand, but with really no control over demand, at least for new demand, as that control is in the county’s hands, in terms of issuing new well construction permits.
“There’s a disconnect there, and as we move into the future, that disconnect needs to be addressed either legislatively, or through some other method,” he said.
Many of the GSPs have groundwater recharge projects that will require constructing new infrastructure, dams, detention basins, and canals to convey water to places where it can percolate into the ground, which is what recharge is.
“Where is water coming from to recharge groundwater?” said Mr. Lippe. “It’s coming from surface water – by definition, that’s what recharge means. So while CEQA doesn’t apply to the GSAs’ adoption of GSPs, it probably will apply to these kinds of projects that involve the construction of new facilities because those require a discretionary permit from a government agency. So hopefully, those CEQA processes will provide a forum to assess whether these projects are simply ways in which there is a borrowing from Peter, which is surface water, to pay Paul, which is groundwater, which would be unfortunate to the extent that the borrowing from the surface water causes impacts on the benefits of using subsurface water.”
Public trust doctrine
A recent decision by the Court of Appeal of the Environmental Law Foundation versus State Water Resources Control Board case found that the public trust doctrine does apply to the extraction of groundwater when groundwater is connected to surface water in a way that the extraction of the groundwater could have a deleterious effect on the beneficial uses of that surface water and the public trust uses of that surface water, which includes fish and wildlife.
“That’s an important recognition in moving forward to a more progressive way of looking at how groundwater is managed,” said Mr. Lippe.
Another important doctrine is Article 10, Section 2 of the California Constitution that prohibits the unreasonable use or waste of water; it applies to both surface water and groundwater.
“One of the tools that the environmental litigation bar has at its disposal is the notion that to the extent that groundwater extractions cause surface water depletion that affects fish, or wildlife, that’s a waste in an unreasonable use of water,” Mr. Lippe said. “And because of the public trust, these public trust resources have primacy in the legal system. So Eric was talking about what the highest and best use, these concepts are critical to representation of environmental interest in that discussion of what the highest and best use is.”
Litigation over Groundwater Sustainability Plans
Mr. Lippe filed two cases on behalf of the California Sportfishing Protection Alliance against the Eastern San Joaquin Groundwater Basin Plan and the Delta Mendota Groundwater Basin Plan, two critically overdrafted basins that were required to submit their plans in January of 2020.
In litigation over the Eastern San Joaquin Groundwater Basin Plan, the parties stipulated to stay that case until the Department of Water Resources has completed its review, which could take up to two years. In the Delta Mendota Groundwater Basin Plan case, the defendants have filed motions on various issues, so Mr. Lippe filed a motion based on the doctrine of primary jurisdiction.
There are several causes of action in these cases; one has to do with interconnected surface waters, and another has to do with projects and management actions. There is a third type of cause of action that has to do with GSA powers, which Mr. Lippe is not litigating.
The slide shows the language from the statute regarding undesirable results. The last one on the list is depletions of interconnected surface water that have significant and unreasonable adverse impacts on the beneficial uses of surface water.
“Because of how undesirable results work legally in the definition of sustainable yield, if there are such significant and unreasonable adverse impacts because of groundwater extraction, then you haven’t achieved sustainable yield,” he said. “So it’s a very powerful way to think about challenging a groundwater sustainability plan that doesn’t actually do what it’s supposed to do to address this issue.”
While SGMA is a bit general in this respect, it is very specific in the sense that the best information available has to be used to analyze these issues, he said. There are methods out there to analyze at a large scale where you’re likely to have adverse undesirable results on surface water as a result of pumping groundwater.
“The GSPs that I’ve looked at, commented on to DWR, and that I’m litigating simply didn’t do that,” Mr. Lippe said. “They kicked the can down the road pretty severely and talked about the fact that this data would have to be gathered in the future. They didn’t really make any bones about the fact that they didn’t gather the data and present the data. They just said, ‘we’re going to do it in the future.’”
“So how you can demonstrate sustainable yield and the achievement of the sustainable yield goals of the plan, which is the legal test, how you can do that if you are simply admitting that you haven’t got the data and the assertion is made that there aren’t techniques available to do that,” he said, noting that hydrologists and geologists presented those techniques to the GSAs and Department of Water Resources and they weren’t utilized. “That’s an important cause of action. And it’s one that, frankly, the GSAs are having a hard time, I think, with from a technical standpoint, just doing the work to identify locations where interconnected surface waters may end up causing a problem.”
The Department of Fish and Wildlife has published guidance, titled Fish and Wildlife Groundwater Planning Considerations. Mr. Lippe said that the document really drills into the questions that a GSP should be addressing about how groundwater plans can document the timing, quantity, and location of interconnected surface water depletions attributable to groundwater extraction and how to determine whether these depletions will impact Fish and Wildlife. He said it’s a lot of work to do, and the GSAs simply have not done that work.
“There are three runs of anadromous salmon in the Central Valley area of the plan that I’m litigating, the Eastern San Joaquin and the Delta Mendota plans, and all of them require flows at certain times of the year in order to migrate upstream so that timing is critical,” he said. “Quantity is critical. These fish live in a water column. So if the surface flow is depleted, they simply don’t have the habitat they need to complete their lifecycle. The location is critical because that is where you would look at the demand for groundwater in those locations where this connection is happening to modify demand. None of that information has been generated to date in the plans that I’ve looked at.”
Concerning projects and management actions, the GSPs that Mr. Lippe reviewed explicitly rely on implementing the projects and management actions described in the plans to achieve the planned sustainability goal. They also explicitly concede that these project and management actions ‘require further analysis and permitting to determine feasibility and cost-effectiveness.’ He said that’s because these projects require CEQA review to be approved, and so the GSAs can’t be certain that the project will actually be approved and implemented. and come online.
“These plans are supposed to demonstrate the achievement of sustainable yield at the time they’re adopted, so how can they do that if the plan’s projects and management actions on which that conclusion is based are not certain of implementation?” he said.
With respect to SGMA’s grant of power to the GSAs, the grant of power is quite broad, and GSAs have lots of different authorities they can use. Mr. Lippe thinks there’s a good argument – a ‘colorable’ argument that the GSA is based on a proper factual showing need to exercise those powers in certain circumstances, and if they don’t, that is an abuse of discretion.
One particularly powerful authority is the authority to require meters on groundwater wells. He pointed out that if you didn’t work in the area of groundwater, you might assume there is a meter on every well because it’s just basic to know how much water somebody is pumping. However, it turns out that there are actually very few out there. Landowners typically don’t want to disclose how much groundwater they are pumping, so they don’t want to put a meter on their well.
So the way of estimating demand is through indirect methods and the USGS has done many analyses of various groundwater basins to estimate demands using indirect methods to do that when gauges on every well would be a very direct way. And it would just be arithmetic to add up to how much water is actually being extracted. So that’s not being done. And so when you have a plan that’s dependent upon reasonably accurate estimates of supply and demand, but you don’t have the demand side, you have a fundamental problem.
Incompatible provisions in SGMA
Mr. Lippe said that SGMA has some ‘strange’ provisions in it. When a GSA adopts a GSP, it becomes effective immediately, but the GSA also has to submit the document to DWR for its review, which can take up to two years. SGMA also provides that the GSA may file a ‘validation action’ to validate their decision, pursuant to the code of civil procedure section 860 statute, which normally has a 60 days statute of limitations. So most public agencies have 60 days to file a validation action to validate their decision after they make the decision; however, SGMA says that the GSA cannot file that action any sooner than 180 days following the adoption of the plan.
“So there’s the statutory tolling,” he said. “It doesn’t say how many days after 180 days would be the outside limit to file that action in terms of the actual limitations period. One thought is you’d add 60 days to 180 days, but the statute doesn’t say that. So you kind of have to start filling in some of the gaps in the statute.”
The other part of the validation statute important for those thinking about challenging a GSP is that according to decades-old validation law and case law, validation is an option for the agency, and if the agency does not file that action, then an objector to the decision must file a so-called reverse validation action to challenge it. If the objector does not file that action, the objector waives all claims against that decision, no matter what statute they’re based on.
“It’s a very draconian result for objectors who do not take up the option of filing a reverse validation action,” said Mr. Lippe. “Some questions start coming up immediately, such as does the reverse validator, the objector to the decision, also have to wait 180 days? Under the CCP 863, the reverse validator has 60 days after the decision, so the reverse validator is looking at a risk of, do I need to file within 60 days of the decision, even though the agency can’t file within 60 days and must wait 180 days, and they plan on filing that action? Why do I need to file if they’re going to file and don’t need to file my own action? But if I don’t file within 60 days, and the court says that was the limit, then I’m out of court forever. So there are a lot of questions that come up in planning litigation.”
Another way to think about it is equitable tolling, he said. “What does DWR’s review have to do with the statute of limitations? Well, one could make the argument that if you participate in the DWR review by submitting comments on the plan, you can then invoke the doctrine of equitable tolling, and you can file your validation action after DWR’s review is complete. The slide has some of the details on that doctrine – but again, you’re taking a risk. You don’t know how the courts going to view that.”
“The most conservative strategy is the one that I employed for my client, which was to file within 60 days after the adoption of the plans, so I didn’t have to worry about all these questions, said Mr. Lippe. “For the critically overdrafted basins, that 60 days have passed, but for people thinking about challenging other GSPs on the medium priority basins or high priority basins that are coming up in 2022, all of these little hurdles and legal questions need to be thought through to do that.”
He also noted that for the critically overdrafted basins, there’s also the availability of a mandamus action against DWR. DWR will make an actual substantive decision that is either going to approve the plan, or find the plan to be incomplete. That will start an iterative process with the GSA to bring it to completion or remain inadequate which then opens up jurisdiction to the State Water Resources Control Board. So if DWR approves, then there would be a petition for writ of mandate available to challenge that.
Primary jurisdiction
Lastly, Mr. Lippe turned to primary jurisdiction, which is a doctrine where if a court and an administrative agency have concurrent independent jurisdiction over a cause of action, then it depends on the facts, but the argument is a good one that the court should stay its litigation of those issues until the agency has made its own determination of those issues.
“In the Delta Mendota case that I brought, I did make a motion to stay the case based on primary jurisdiction to achieve the same result that was achieved in the Eastern San Joaquin case,” he said. “That motion is pending. There’s also some change of venue motions pending, and so the court will be deciding on those.”
DISCUSSION HIGHLIGHTS
Moderator Natalie Stork asked the question, relating to allocations, demand management and other related GSP and SGMA implementation issues, how do you prioritize the highest and best use of water? And who decides?
Eric Averett acknowledged how difficult that is. “Frankly, that’s the situation we find ourselves in. In my presentation, I had proposed a state baseline, and it doesn’t answer or respond to all of the different positions that have been advanced, at least in our basin, but we have to start somewhere. The challenge that we have, and some of the discussions that I have been a part of or have heard, which is when there is no clear baseline, everyone feels like, ‘I have nothing to lose, so I’m going to advance my position, however unreasonable it may be.’ They’ll find somewhere where that has prevailed. And what we’re left with is a lot of folks staking their hopes and future plans on that the courts will find in favor of this particular methodology, which doesn’t lend itself to fruitful discussion or negotiation.”
“The question of who decides, in the absence of the GSAs, constituents, and stakeholders all coming together, ultimately it’s the court and that’s what I’m hoping that we can avoid,” Mr. Averett continued. “The problem is that if you look at the adjudications around the state, there is no clear standard. And so that leaves us with this vacuum that people are filling in with all these different proposals. I really hope that we can establish what I call the floor standard so that we can go to our constituents and say, Look, this is what will happen. If we’re not successful, can we do something better? Can we make a larger group of people happy? But right now, it is not clear who makes that decision.”
Mr. Lippe hearkened back to the slide that Mr. Averett showed with the balance where on one side, there were disadvantaged communities, urban, agriculture, and environment. “Each interest group has their bundles of legal rights that they can come to the table with, and ultimately a court makes a decision if there isn’t a better way,” he said. “Environmental has the unreasonable use doctrine, the public trust doctrine, the Endangered Species Act – there’s a whole bunch of legal tools that environment has at its disposal. Disadvantaged communities have environmental justice, human rights to water, and maybe others. Agriculture, you have overlying water rights for the landowner. With urban, you have rights to surface water, and then to the extent that urban is getting groundwater for municipal water use, there are legal entitlements. I share the frustration that there’s no simple way to get people to agree because we live in a contentious competitive society, and everybody has their legal position staked out.”
Camille Pannu said that case law and statute have been pretty clear that the highest and best use among all the uses is residential water for drinking water purposes. “If we start with the presumption that we need to ensure that we maintain the human right to water for everyone who’s currently receiving water, or has had a historic right of access to that water since some groundwater tables were depleted so significantly recently, then we start thinking about other beneficial uses, and I think we’ll be in a much more sustainable place in terms of how we calculate the budget. Urban water users and disadvantaged communities have the benefit of using the least amount of water when we break up the pie of water usage. And that has to be balanced against environmental concerns as well. It’s always odd to me that we treat environmental allocation of water as a separate group, and really, environmental should be the default, and then we’re appropriating away from environmental for all other uses.”
“The downside of things like tying water use or priority to acreage is first that it disadvantages people with very little land, and of course, given the historical ways in which groundwater, surface water, and land had been allocated in these regions, and specifically, the racially discriminatory ways in which it’s been allocated, it’s just going to reproduce the same inequality we see today,” continued Ms. Pannu. “SGMA could play an interesting role in bringing into balance some of the historical inequalities that we’ve seen. But it will only work if folks are willing to step outside of their interest group a little bit to consider whether they should be thinking of different or more effective ways to use water. And some of them might require interrogating some of the uses we’ve created today, including significantly durable and heavily water wasting uses of groundwater.”
Tom Lippe agreed with Ms. Pannu and asked Mr. Averett, if you have a disadvantaged community where lots of people live on a small number of acres, but you have a ranch that’s 100,000 acres, how does your proportional to acreage result in any equity in that scenario?
Eric Averett gave the example that in their basin, the amount of native yield or sustainable yield in .15 acre-feet per acre, which is insufficient to develop a piece of ground for much more than an urban footprint, and even then, it’s really just for inside use.
“The dilemma that we have, and again, it’s not to argue that one user has a higher or a greater need, but when you have a finite resource, I really can’t think of any fairer way than to allocate proportional to the land, because ultimately, the land is owned by somebody,” said Mr. Averett. “In order to disproportionately allocate, the perception, right or wrong, is that it’s being taken from somebody else. And they will then feel like, well, I’ve got to protect this because it’s my economic vitality, and I have overlying uses, and I have prescriptive, and I have appropriation. We get back to where we are today, which is arguing all of the different legal reasons why one right is higher or more important or recognized by the courts than the other.”
“The devil may be in the details on some of that, but at a broad level, just the idea of proportional to acreage seems to give primacy to overlying rights to use groundwater as which is within the ag box,” said Mr. Lippe. “That downplays the environment needs for water and disadvantaged community needs for water. Maybe there’s a way to mitigate that bias. But to me, the overlying rights to use water underneath land is simply one legal right. It has to be balanced against all these other legal rights that I was talking about earlier. It’s just not working for me as a solution.”
“The landowner that owns the 1000 acres, and has .15 acre-feet per acre may be able to irrigate 10 acres of crop but had to buy 1000 acres in order to do that, whereas the landowner who could put three homes on one acre, probably has sufficient water supply to meet their interior use needs,” said Mr. Averett. “They probably would be required to have little or xeriscape landscaping, but that’s just the reality of my region. And I know it’s different than others. But in order to fully take advantage that, 1000 acres may yield five acres of irrigated crop or less.”
Ms. Pannu said that nonetheless, proportional to acreage is concerning. “The first is that it prioritizes those who can buy large landholdings over others, which is just inherently troubling to me. The other thing that worries me is that particularly in your region and throughout the San Joaquin Valley, we have a long history of people buying land in order to control water and then driving up the price or driving up demand. There have been some articles such as the one about Harvard University’s endowment, for example, buying up land, knowing that water will become scarce, and then it will become very dear and increase their investment portfolio. And there’s already a little bit of that going on in the San Joaquin Valley where land holdings are much greater for agriculture than they are to go further north where farms and ranches become smaller.”
“The part that I worry about is that a lot of those large landholdings and the ability to purchase that much land has been subsidized largely by the public, historically, and definitely benefited a very small number of landowners compared to the total number of interested people in the region,” Ms. Pannu continued. “So I worry that the same inequality that resulted in the land skews that we see right now such as three landowners, for example, with about 70% of the arable land in the San Joaquin Valley. Should they also own 70% of the water, which is common resource of the people? That just worries me a little bit.”
Eric Averett said he certainly doesn’t discount that. “We create the David and Goliath picture when we talk about 1000 acre holdings. Maybe consider this: there are three of us on the panel, and each of us buys an acre of ground or has a home. What I struggle with is that each of us desires, whether it’s to build a home or do something else, to economically leverage that. Absent that proportionality, what happens is some one of us three will have to forego that opportunity in order to transfer the water to another party and that’s what I struggle with. Let’s take all the large landowners and every person owns a lot. How do we create that equity when we’re saying, no, I’m sorry, but that we need to transfer some component of your water and limit your ability to use it on the ground, because there’s another user, whoever it may be, that needs it. And that’s what I have yet to break through and understand. Recognizing that, you know, we have these larger groups that have resources that others might not.”
But proportionality levels the playing field, continued Mr. Averett. “It says you’re not going to get more than your fair share. And again, using the three of us as an example, we’re all homeowners adjacent to each other. The alternative begs that one of us forgoes building our home or using our land for the purposes that we acquired it for. And that’s what I haven’t been able to figure out. How do we get to a point where we satisfied all those means?”
“It just seems like there has to be some meta level allocation above proportional to acreage, or is proportional to acreage makes sense to me within the ag box,” said Mr. Lippe. “What Camille said that environment should be first because that’s what we’re all basing this entire civilization on is this environment. And so if you’re going to do proportional to acreage after the environmental needs have been satisfied, that makes sense to me. But there’s got to be some other meta level allocation for disadvantaged communities and municipal water use – drinking water.”
Camille Pannu suggested we do something very similar in surface water. “Part of the difficulty is that the concept of groundwater rights lets people say, well, that’s my water, whether or not it really should be conceived of as their water and whether or not a landowner should or shouldn’t be able to develop their property in whichever way that they please. Some forms of development are going to be very water wasting. And perhaps SGMA is an opportunity to nudge people towards more sustainable use of overlying land so that we get to a much more sustainable use of groundwater as well.”
