Regulating Groundwater in California: Will the Landscape Change With Gsa Formation?

• Publication year: 2015
• Author: by Wesley A. Miliband

Regulating Groundwater In California: Will The Landscape Change With GSA Formation?

by Wesley A. Miliband^*

I. INTRODUCTION

"The history of California is written on its waters . . ."

-Justice Ronald B. Robie

State Water Resources Control Board Cases (2006) 136 Cal. App. 4th 674

California is known for epic water wars, past and present, evident in part from Justice Robie's statement quoted above. With landmark groundwater legislation passed into law late last year—the Sustainable Groundwater Management Act ("SGMA"¹)—the landscape for groundwater regulation will change in the years and decades ahead. That much is certain, if for no other reason that groundwater basins in California will be mandatorily regulated and managed statewide for the first time in California's 165-year history. What is uncertain is the extent to which unintended consequences or adverse impacts will result from implementing SGMA.

A foreseeable and potentially adverse, though theoretically avoidable, result arises from how groundwater basin boundaries correlate with the boundaries of Groundwater Sustainability Agencies ("GSA" or "GSAs") created under SGMA. GSAs will be responsible for achieving and maintaining sustainability. Complete contiguity between groundwater basin and GSA boundaries is ideal, yet is much more easily written than actually completed. Competition for GSA status within the same basin is already well underway in parts of the state. This issue of boundary contiguity is ripe for prophylactic efforts by and between stakeholders and local agencies so that GSAs can be formed with less controversy and more cooperation.

Also uncertain is whether SGMA will impair water rights. Though SGMA says water rights are not altered by implementation of SGMA, in some groundwater basins the groundwater production will in effect 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 as free to fully exercise their water rights. Whether this impairment to water rights evolves into a dispute will depend on the factual, legal and political dynamics specific to each basin.

Regardless of its consequences, one could view SGMA's aim toward sustainability as an extension of the public trust doctrine, particularly the "ecological" public trust doctrine for which the late renowned Professor Joseph Sax inspired. After all, SGMA's key goal is to "provide for the sustainable management of groundwater basins."²

This article seeks to enhance understanding of SGMA and 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 California water rights is provided as well as the historical regulatory structure of those rights, followed by exploration of SGMA's framework and the challenges likely to occur with GSA formation, including the boundary issue. The article concludes by offering ideas designed to mutually advance respective interests of agencies and stakeholders.

II. CALIFORNIA WATER RIGHTS

Water rights are treated under California law as real property rights.³ Each water right is a usufructuary right, meaning use and access of the water as opposed to ownership of the water.⁴ A critical distinction exists between holding a "water right" versus "a right to water," with the former referring to a property and the latter referring to a contractual right.⁵ In effect, both involve extracting or diverting water from a specified source and applying the water to beneficial, non-wasteful use. While the practical effect can be the same or similar, the basis, rights and obligations arising from having a water right may differ significantly from those arising from a contractual right.

While many other western states utilize an appropriative water rights paradigm, California deploys a dual or hybrid system of riparian and appropriative rights.⁶

Types Of Water Rights

Given the intended focus on SGMA, only three types of water rights existing under California law are identified here: overlying, appropriative and prescriptive rights.

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When groundwater is the water supply source, a landowner's water right generally is an "overlying right," which, "analogous to that of a riparian owner in a surface stream, is the right of the owner of the land to take water from the ground underneath for use on his land within the basin or watershed; the right is based on ownership of the land and is appurtenant thereto."⁷ Overlying right holders enjoy a "correlative share" to the water, generally meaning the overliers equally share the water.⁸

An "appropriative right" is one in which groundwater is produced and then used or sold for use outside of the parcel or area from which the water was produced, with the "taking of water for other than riparian or overlying uses potentially ripening into a prescriptive right."⁹ "As long as there is a surplus in the ground water area, appropriative rights relating to such surplus are just as valid and entitled to protection . . . [and] [s]uch appropriations may be made for the use of the water outside the ground water area, or for public utility use within the area."¹⁰ A particularly coveted appropriative right is the "pre-1914" right, which is a right perfected prior to the state's adoption of the Water Commission Act of 1914.

The marked difference generally between overlying water rights and appropriative water rights is that appropriators have priority amongst one another based on "first in time, first in right" while no "overlying owner has priority over any others solely because he used the water first."¹¹

"Prescriptive rights" are not acquired by utilizing "surplus" or excess water, but instead "an appropriative taking of water which is not surplus is wrongful and may ripen into a prescriptive right where the use is actual, open and notorious, hostile and adverse to the original owner, continuous and uninterrupted for the statutory period of five years, and under claim of right."¹²

Reasonable And Beneficial Use

All water use, including by those exercising water rights, in California is subject to being "reasonable and beneficial" to the exclusion of not "wasting" water. This mandate is embedded within the state constitution as well as statutory and decisional law. The reasonable and beneficial use mandates apply to groundwater.¹³

The California Supreme Court announced in 1903 the doctrine of "reasonable use," which "limits the right of others to such amount of water as may be necessary for some useful purpose in connection with the land."¹⁴Twenty-five years later, this doctrine was codified in a constitutional amendment that "prohibits the waste or unreasonable use, method of use, or method of diversion of water."¹⁵ Similarly required is applying water to "beneficial use." All "water, under whatever right the use may be enjoyed, is restricted to reasonable [and] beneficial use,"¹⁶ with the type of use(s) to which water is put being a key factor when evaluating water rights.¹⁷Various beneficial uses are enumerated in California regulations, including domestic, irrigation, power, municipal and recreational uses.¹⁸ The regulations' list is not exhaustive.¹⁹

Units Of Measurements

Another key component regarding water and its use involves units of measurement. Various methodologies exist to quantify how much water is used, such as gallons per minute, usually used to compute pump capacity, well flow or domestic consumption; the standard miner's inch of water or cubic foot of water per second; or an acre foot of water, "the equivalent of one acre of ground covered to the depth of one foot with water," which is used typically when water in storage is referred to or when agricultural use of water is involved.²⁰

III. REGULATORY HISTORY OF CALIFORNIA WATER RIGHTS

Prior to the enactment of SGMA, "percolating ground-water" was not subject to a statewide regulatory program, while surface water has been subject to regulation by the state for over 100 years.

"For more than a half-century, the courts in many decisions have created and developed the current rules that govern the water rights in the vast developments of ground waters in this state and, with marked consistency, the legislature has followed a hands-off policy."²¹ Whether simply an observation or a criticism, the learned Wells Hutchins uttered that statement 50 years ago with accuracy.²²

Surface water, however, has been subject to statewide regulation since the state's adoption of the Water Commission Act of 1914 (predecessor to today's Water Code), which led to creation of the agency that later evolved into the State Water Resources Control Board and established today's license and permit processes for surface water.²³ Treated the same as surface water, subterranean stream water flowing through "known and definite channels" is "governed by the same principles as are rights to the use of surface streams,"²⁴ thereby diving into what can be complex determinations of what is "percolating groundwater" versus "subterranean stream" flow. Fortunately, the law helps.

The law presumes that groundwater is percolating.²⁵ From a technical standpoint, percolating groundwater refers to "water beneath the surface of the earth within the zone below the water table in which the soil is completely saturated with water, but does not include water that flows in known and definite channels."²⁶ Stated differently, percolating waters are "wandering waters moved by gravity in any direction along the line of least resistance."²⁷

While both water supply sources—surface water and groundwater—are now subject to statewide regulation, determining which type of water is being used is still critical for many reasons, including for establishing or defending water rights; navigating applicable regulatory processes; and making well-informed business and operational decisions.²⁸

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IV. THE...