September 19, 2014 -- Client Alert
On September 16, Governor Jerry Brown approved a trio of bills - AB 1739 (Dickinson), SB 1168 (Pavley), and SB 1319 (Pavley), collectively the Sustainable Groundwater Management Act - that address the regulation of groundwater in California, with the primary aim of sustainable management of unadjudicated groundwater basins throughout the state. Through its additions and changes to the Government Code and Water Code, this legislation marks a significant milestone and change in California water law and in the management of the State’s groundwater resources.
Groundwater Sustainability Agencies & Sustainability Plans
A main theme in the legislation is that groundwater management in California is best accomplished locally. State involvement is primarily limited to technical support and reporting requirements, however, intervention is a possibility if local agencies fail to meet the Act’s timelines and standards.
The Act requires the Department of Water Resources to categorize each groundwater basin as high-, medium-, low-, or very low priority by January 31, 2015. All groundwater basins designated as high- or medium-priority (those subject to critical conditions of overdraft), must be managed by a local groundwater sustainability agency and under a groundwater sustainability plan within five to seven years, and must ultimately achieve sustainability by the year 2040.
Already-adjudicated basins (the legislation provides a specific list) are largely exempted from the new requirements. The watermaster (or applicable management entity) for each adjudicated basin must comply with certain reporting requirements by April 1, 2016, and annually thereafter.
General Plan Amendments
The legislation requires planning agencies, prior to the adoption of any substantial amendment of a general plan, to review and consider a groundwater sustainability or management plan, or applicable court order, judgment, decree, or adjudication of water rights. It also directs the planning agency to refer the proposed amendment to any local groundwater sustainability or management agency (though the failure to do so does not affect the validity of the action). The groundwater sustainability agency must then supply the planning agency with certain information regarding the anticipated effect of the adoption on implementation of a groundwater sustainability plan.
Fees Imposed & Propositions 218 and 26
The Act enables a groundwater sustainability agency that adopts a groundwater sustainability plan to impose fees on the extraction of groundwater from a basin to fund costs of groundwater management. It explicitly requires that these fees be adopted in accordance with Proposition 218, subdivisions (a) and (b) of Section 6 of Article XIII D of the California Constitution. The requirement is consistent with the Court of Appeal’s holdings that fees on groundwater pumping are subject to Proposition 218. (See, Pajaro Valley Water Management Agency v. Amrhein (2007) 150 Cal.App.4th 1364; see also, Griffith v. Pajaro (2013) 220 Cal.App.4th 586.)
Governor Brown noted in his official signing message that he will, “submit for legislative consideration during the next session a proposal to streamline judicial adjudications of groundwater rights.” This statement may be an indication that Governor Brown anticipates the Act will facilitate increased efforts for determining groundwater rights.
A detailed memorandum is forthcoming for Aleshire & Wynder, LLP clients. The text of the legislation is available at: leginfo.legislature.ca.gov/faces/billSearchClient.xhtml.
For further information, please contact June Ailin or Miles P. Hogan from Aleshire & Wynder, LLP’s Water Practice Group at (949) 223‑1170.
Disclaimer: Aleshire & Wynder, LLP legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Please seek legal advice before acting or relying upon any information in this communication.