A Brave New World of Water Regulation

The following article was originally published in the San Francisco Daily Journal on September 29, 2014. © 2014 Daily Journal Corporation. Reprinted with permission.

A brave new world of water regulation

Since the state of California was born, the right to extract and use groundwater has been virtually unregulated — the law has provided few tools to limit or manage how agricultural, industrial and residential users compete for this valuable and increasingly scarce resource. But all that is about to change. A record drought, declining groundwater levels, and a lack of groundwater regulation have combined to create an environmental crisis in California — shedding light on an unsustainable groundwater management system that is no longer able to reliably meet human, economic and ecological needs — and spurring a legislative call to action. 

On Sept. 16, the state Legislature and Gov. Jerry Brown responded to that call with the passage of a package of bills known as Assembly Bill 1739, Senate Bill 1168 and Senate Bill 1319 that collectively constitute the Sustainable Groundwater Management Act, designed to provide a long-term solution to a long-standing problem. But with the bulk of regulatory authority delegated to local water agencies and counties, many water users fear it opens the door to haphazard, inconsistent management and inequity among various parts of the state. 

California often finds itself on the forefront of environmental legal and regulatory issues; not so when it comes to groundwater management. Unlike other Western states, in its 164-year history, California has never adopted a comprehensive groundwater management program. Until now, California placed no real limitations on how many wells a user could drill, how deep those wells could be, or how much water could be pumped by any given user. Use generally was permitted as long as it was “reasonable and beneficial,” and there were no usage reporting requirements; the primary limitation for most users was the cost of drilling the wells themselves. 

The act aims to change that, establishing a state policy that California’s groundwater resources are to be “managed sustainably for long-term reliability and multiple economic, social and environmental benefits for current and future beneficial uses.” It defines “sustainable groundwater management” as management and use of groundwater that can be maintained during a 50-year time period without causing an “undesirable result,” which includes significant and unreasonable: depletion of supply, reduction of groundwater storage, seawater intrusion, degraded water quality, and land subsidence, among other things. 

The new law creates a framework for sustainable groundwater management that will be implemented at the local or regional level, but provides the state authority to act as a backstop. Specifically, the provisions of the act will be implemented through a local public agency that has water supply, water management, or land use responsibilities within its respective groundwater basin(s) and that elects to become a groundwater sustainability agency (GSA) for the area. Areas not within the jurisdiction of a designated GSA will be managed by their respective counties. If a GSA fails to adequately manage a specified basin, or if the Department of Water Resources makes a determination that the basin is in a condition of long-term overdraft, the basin will be declared a probationary basin and the State Water Resources Control Board will have the authority to develop and implement an interim plan until the GSA is prepared to resume management.

GSAs are granted broad powers and authority to achieve the sustainability goals of the act. GSAs may require groundwater well registration, measurement of groundwater extraction, and filing of annual extraction reports. GSAs may control groundwater extractions by regulating the construction of new groundwater wells, limiting the enlargement of existing wells, or establishing groundwater allocations. GSAs may also impose and collect regulatory fees to fund the costs of groundwater management programs. 

GSAs with authority over basins designated as “high-priority” or “medium-priority” by the department will be required to develop and implement groundwater sustainability plans (GSPs) or, in the alternative, demonstrate existing sustainable management pursuant to an adjudicated action. Basins designated as low- or very low-priority are encouraged, but not required, to develop and implement GSPs. 

Each GSP must include a description of the aquifer system underlying the basin. The GSP must also set forth measurable objectives and interim milestones to achieve the sustainability goal in the basin within 20 years of the implementation of the GSP; a 50-year planning and implementation horizon; a description of the monitoring locations, procedures and protocols; a description of the consideration given to applicable county and city general plans; and components related to monitoring and management of groundwater levels and quality, mitigating overdraft, and describing the role of recharge areas. 

GSAs must submit their GSPs to the department for initial approval. Following the approval of a GSP, GSAs must submit annual reports to the department containing information about the groundwater elevation, aggregate extraction, surface water usage, and changes in groundwater storage. Every five years after initial GSP approval, the department will assess the GSAs’ progress in achieving the sustainability goal within the basin. The department may recommend corrective actions to address any deficiencies identified. 

Although the current drought and previous lack of groundwater regulation have resulted in overdrafted groundwater basins around the state, the act’s ultimate goal of sustainability will take significant time to achieve. The following list of deadlines triggered by passage of the law demonstrates its stepwise approach and long-term nature:

  • Jan. 31, 2015 — deadline for the department to categorize each groundwater basin as high-, medium-, low- or very low-priority
  • Jan. 1, 2016 — deadline for the department to adopt regulations to be used to evaluate proposed revisions to basin boundaries 
  • June 1, 2016 — deadline for the department to adopt regulations for identifying the components of GSPs and for evaluating those plans and their implementation
  • Dec. 31, 2016 — deadline for the department to prepare and release a report on the best estimate of water available for replenishment of groundwater in the state
  • Jan. 1, 2017 — deadline for the department to publish a list of best management practices for sustainable groundwater management 
  • Jan. 1, 2017 — deadline for local agencies to elect to become or form a GSA
  • Jan. 1, 2020 — deadline for high- or medium-priority basins that are “subject to critical conditions of overdraft” to be managed under GSPs
  • Jan. 1, 2022 — deadline for remaining high- and medium-priority basins to be managed under GSPs
  • Jan. 1, 2040 — deadline for all high- and medium-priority groundwater basins to achieve sustainability

The program will not be substantially implemented for more than two years, which means that the law won’t provide California much help navigating the current drought, but Brown hopes it will improve the state’s ability to manage the inevitable droughts of the future. While some may argue that the act’s implementation schedule is merely a trickle when what’s needed is a pour, there is no question that this law is a substantial effort by the legislature towards achieving sustainability of a limited and critical resource — groundwater — for California’s residents, municipalities, farmers, and businesses. But the threat of uneven application of the law—and the litigation that would inevitably result — looms large among users. Time will tell whether this law will effectuate its goal of sustainable groundwater management or just add a new layer of complexity and expense to the burden already borne by California water users.