Environmental Defense Fund (EDF) | July 1st, 2018
Summary
The Sustainable Groundwater Management Act (SGMA) became law on January 1, 2015, forever changing the manner in which groundwater will be managed in California. It requir
The Sustainable Groundwater Management Act (SGMA) became law on January 1, 2015, forever changing the manner in which groundwater will be managed in California. It requires local Groundwater Sustainability Agencies (GSAs) to be formed and Groundwater Sustainability Plans (GSPs) to be prepared in order to achieve sustainable groundwater management within 20 years of adopting a GSP.
SGMA applies to 127 medium and high priority groundwater subbasins around the state. Over 100 of the medium and high priority groundwater subbasins are in conditions of chronic overdraft (DWR, 2018), meaning average annual groundwater extractions exceed average annual water replenishment to many of the subbasins. These conditions have resulted in a variety of undesirable impacts to the subbasin, including, but not limited to, increasing depth to groundwater, reductions of groundwater storage, seawater intrusion, degraded water quality, and land subsidence.
In many subbasins, groundwater overdraft conditions will require GSAs to impose reductions in pumping in order to achieve sustainable conditions in the subbasin. To do this, GSAs will need set a limit or “cap” on the overall amount of groundwater that is removed from the subbasin, assigning portions of this capped amount to groundwater pumpers in the form of a pumping allocation.
Making pumping allocation decisions will be a difficult task for GSAs, as it will require restricting access to groundwater resources upon which the agricultural community, cities and towns, and others depend. SGMA expressly does not create or adjust groundwater rights and the basic law of groundwater rights remains largely unchanged. Simply put, this means that while GSAs are tasked with managing groundwater with the goal of bringing groundwater conditions into balance and stopping further depletions and other undesirable impacts, they do not have the authority to change or modify groundwater rights. Thus, GSAs should be mindful of the basic law of groundwater as articulated by the common law and a series of adjudicatory court decisions over the last 100 plus years.
The subject of this paper is how to address this dilemma, with the reasoning that if GSAs devise groundwater allocation schemes in a manner consistent with the fundamental principles of groundwater law, the schemes are likely to be more durable, and GSAs are more likely to achieve sustainable groundwater management in a legally defensible manner. To do this, we first provide background on the nature of groundwater rights and how the hierarchy of groundwater rights may affect the legal defensibility of pumping allocations imposed by GSAs upon pumpers. We then discuss the role of groundwater allocations and methods for allocating groundwater pumping rights, and then offer a suggested allocation approach with criteria for consideration when using this approach. To help readers work through the allocation process, the paper includes a hypothetical decision tree graphic. We also discuss the importance of measurement, tracking, and enforcement, as well as additional considerations under SGMA before offering some concluding remarks.