February 10, 2017
As California experienced its worst-ever drought, at its disposal were outdated water laws, many of which were enacted over a century ago when California had only 3 million residents. In 2014, the state legislature, recognizing the immense value of water as a public resource and the huge detriments of water scarcity, revolutionized California’s water laws. The new, extensive legislation authorizes local control of water basins and requires long-range planning to battle drought conditions.
In order to comply with these sweeping changes to the laws, some public entities face important deadlines beginning in June of this year.
Law Establishing Groundwater Sustainability Agencies
With the 2014 passage of the Sustainable Groundwater Management Act ("Act"), California dramatically changed its water laws. The Act, codified in California Water Code sections 10720-10936, established a new structure for managing the state’s groundwater resources, emphasizing local control by local agencies.
The Act requires the establishment of a Groundwater Sustainability Agency ("GSA") by June 30, 2017 to manage groundwater pumping for every high or medium priority groundwater basin. Currently, the California Department of Water Resources ("DWR") has identified 127 basins as high or medium priority. Each GSA must return the basin to a level of sustainability within 20 years. If GSA’s are not properly formed by the June 30th deadline, the State Water Resources Control Board will intervene and manage groundwater extraction activities.
Groundwater Sustainability Plans
Once a GSA is established, it must develop and implement a Groundwater Sustainability Plan ("Plan") to meet the sustainability goal of the basin, ensuring that it operates within its sustainable yield without causing undesirable results. Plans for basins deemed high priority and critically over drafted must be submitted to the DWR by January 31, 2020. Plans for basins not deemed in critical overdraft, but with high or medium priority, must be submitted by January 31, 2022.
The new legislation provides three options for managing a basin:
Effect of Recent Rains and Snow
Of course, California has had a great deal of snow and rain in the last few months, with the state’s snowpack at its highest level since 1995. However, "the years of drought California has experienced means it may take time to restore normal conditions." Ellen Powell, "As the Snowpack Piles up, Is California’s Drought Over? No, Say Experts," The Christian Science Monitor (Feb. 4, 2017). Approximately 47 percent of the state is still in some level of drought, including 11 percent in "severe" or "extreme" drought. United States Drought Monitor, hosted by the National Drought Mitigation Center at the University of Nebraska, Lincoln, http://droughtmonitor.unl.edu/Home/StateDroughtMonitor.aspx?CA Many groundwater aquifers remain at very low levels. "It will take many years of consistent, above-average rainfall to fully recover from the drought." Ana Lucia Garcia Briones, "Why One Wet Winter Won’t Solve California’s Water Problems," Blog of the Environmental Defense Fund (Feb. 6, 2017). There is no indication that state water laws will be amended to reflect the recent weather conditions.
Complexities in Implementing the New Laws
The state’s new water laws, with their emphasis on local control of water basins and long-term planning, may provide immense benefits to California’s residents, businesses, and environment. However, in the short run, the new water laws may cause confusion to governmental entities involved and/or affected by water rights, needs, and distribution.
Compliance with the Act involves many complexities. For one thing, the Act does not specify the details for institutional design of GSAs or what specific governance actions must be taken to achieve sustainable groundwater management. Instead, it allows GSA’s to choose from a variety of regulatory and non-regulatory tools, such as regulations, ordinances, and resolutions. Secondly, the relatively short timeline for GSA formation requires local governmental entities seeking to form agencies to analyze and select available options quickly to meet current and future groundwater challenges. Thirdly, the Act tasks GSA’s with tight deadlines for developing and implementing Plans. Fourthly, GSAs will operate within a complicated legal landscape of environmental laws such as CEQA, state and federal Endangered Species Acts, open government laws, and local land use policies.
The new laws likely will raise many questions which will require assistance from experienced counsel, and, ultimately, resolution from the courts.
Legal Assistance in Establishing GSA’s and Developing Plans
Atkinson, Andelson, Loya, Ruud & Romo recently was appointed general counsel for North Kings Groundwater Sustainability Agency ("NKGSA"). This joint powers authority, consisting of the County of Fresno, City of Fresno, Fresno Irrigation District, and several smaller private and public water agencies, will now govern all groundwater pumping for the North Kings Groundwater Subbasin. Because this basin is considered critically over drafted, the NKGSA must file its plan by January 31, 2020.
AALRR attorneys Kevin Dale and David Boyer, the lead attorneys for NKGSA’s water issues, have significant experience with the federal Clean Water Act (CWA), the California Porter-Cologne Water Quality Control Act (Porter-Cologne), CEQA, NEPA, Urban Water Management Planning Act (UWMPA), CERCLA, RCRA, and the federal and California Endangered Species Acts (ESA & CESA). Nate Kowalski and other AALRR attorneys, who represent special districts in labor, employment and construction matters, will assist the NKGSA as needed.
Please let us know if you have questions or concerns about California’s new water laws.