Regulating Groundwater in California: Will Groundwater Sustainability Agencies Change the Landscape?

• Date: 01 December 2015

45 ELR 11104 ENVIRONMENTAL LAW REPORTER 12-2015

I. Introduction

“e history of California is written on its waters. . ..”

ese words by California appellate justice Ronald B.

Robie in State Water Resources Control Board Ca ses1 reect

the state’s reputation for epic water wars, past and pres-

ent. With landmark groundwater legislation—the Sustain-

able Groundwater Management Act (SGMA)2—passed

into law late last year, the landsc ape for groundwater will

change for years and decades to come. at much is cer-

tain: Groundwater basins in California will be mandato-

rily regulated and managed statewide for the rst time in

California’s 165-year history. However, still uncertain is to

what extent unintended consequences or adverse impacts

will result from implementing SGMA.

A foreseeable and potentially adverse, though theoreti-

cally avoidable, result arises from how groundwater basin

boundaries correlate with the boundaries of groundwater

sustainability agencies (GSAs) est ablished under the stat-

ute. ese agencies will be responsible for ensuring that

basin sustainability is achieved and maintained. Complete

contiguity between groundwater basin and GSA bound-

aries is ideal, yet is much more easily written than actu-

ally accomplished. Competition for GSA status within the

same basin is already well underway in part s of the state.

is issue of boundary contiguity is ripe for prophylactic

1. State Water Res. Control Bd. Cases, 136 Cal. App. 4th 674 (Cal. Ct. App.

2006).

2. C. W C §§10720-10936. SGMA is commonly pronounced like

sigma in the Greek alphabet.

C O M M E N T

Regulating Groundwater in

California: Will Groundwater

Sustainability Agencies

Change the Landscape?

by Wesley A. Miliband

Wesley A. Miliband is Of Counsel at Stoel Rives LLP.

eorts by and between stakeholders and loca l agencies so

that the best feasible GSA can be formed, meaning less

controversy and more cooperation.

Also uncertain is whether SGMA will impair water

rights. ough the law states that water rights are not

altered by its implementation, in practice in some ground-

water basins, the groundwater production will be reduced

from historical demands in order to bring the basin back

into balance for purposes of long-term sustainability of the

resource. In turn, some individuals or entities with water

rights may not be a s free to fully exercise those rights.

Whether this impairment to water rights evolves into a dis-

pute will depend on the factual, legal, and political dynam-

ics specic to each basin.

Irrespective of whether one’s viewpoint is that SGMA

and its known or unknown consequences are right or

wrong, good or bad, or perhaps a more complex middle

ground, one could claim that the statute’s aim toward sus-

tainability is an extension of the public trust doctrine, par-

ticularly the ecological public trust doctrine that the late,

renowned Prof. Joseph L. Sa x inspired. A fter all, SGMA’s

key goal is to “provide for the sustainable management of

groundwater basins.”3

is Comment seeks to enha nce understa nding of

SGMA, the boundary issue of groundwater basins, and the

GSAs anticipated to govern and manage the groundwater

within those basins. To that end, a brief discussion of Cali-

fornia water rights is provided as well as the historical regu-

latory structure of those rights, followed by exploration of

SGMA’s framework and the challenges likely to occur with

GSA formation, including t he boundary issue. e Com-

ment concludes by oering ideas designed to mutua lly

advance respective interests of agencies and stakeholders.

3. C. W C §10720.1(a).

  is Comment was rst published as Wesley A.

Miliband, Regulating Groundwater in California: Will the

Landscape Change With GSA Formation?, E. L. N,

Vol. 24, No. 2 (Fall 2015) (published by the Environmental Law

.

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