Dispute Resolution Processes – Thinking Through SGMA Implementation: A Water in the West Series

Groundwater serves as the primary water supply for more than two billion people worldwide (Famiglietti 2014) and supplies approximately 40% of irrigation water supply globally (Siebert et al. 2010). This heavy reliance on groundwater aquifers has led to the unsustainable depletion of groundwater resources at the regional and global scale resulting in an increasing number of conflicts over groundwater resources (Jarvis 2014). Similar to global trends, a long-term overreliance on groundwater in California has resulted in historically low groundwater levels in basins throughout the state. Groundwater level declines have had widespread impacts, including drying of domestic wells, land subsidence and the loss of supply wells.

In 2014, California passed the Sustainable Groundwater Management Act (SGMA) to address the impacts resulting from chronic groundwater overdraft in the state. SGMA requires formation of local Groundwater Sustainability Agencies (GSAs).

GSAs must develop and implement Groundwater Sustainability Plans (GSPs, Plan) to achieve sustainability within 20 years of Plan implementation. Achieving sustainability requires local agencies, stakeholders and water users to make many difficult and potentially contentious decisions such as regulating pumping, levying pumping fees and finding and purchasing alternative water supplies to meet legislated sustainability goals. These decisions are prone to conflict, particularly when pumping restrictions are viewed as infringing on property rights, or when fees are charged to support local management.

Traditionally, many of these decisions have been resolved through court adjudications, many of which have been long and expensive processes in California (Szeptycki et al. 2018) and elsewhere (USDA 2018). In recent decades, the Alternative Dispute Resolution (ADR) movement has fostered use of alternative processes, including direct negotiation among the parties, facilitation, mediation and arbitration in lieu of, or supplemental to, adjudication to resolve environmental conflicts. The U.S. Department of Agriculture (USDA) mediation program has the explicit goal of helping “avoid expensive and time-consuming administrative appeals and/ or litigation” (USDA 2018). Other government departments like the Department of Energy and the U.S. Environmental Protection Agency also have mediation programs with similar goals.

Many of the local GSAs established under SGMA are multi-entity GSAs formed through Joint Powers Authorities Agreements (JPAA) or through Memorandums of Understanding Agreements (MOUA) – we refer to these agreements collectively as “Agreements.”

Additionally, the jurisdictional area of many GSAs does not span the entire groundwater basin. SGMA requires sustainability at the basin-scale, so many GSAs will need to collaborate internally (among member agencies within a GSA) and externally (with other GSAs in their basin) to develop and implement GSPs which are “together likely to achieve the groundwater sustainability goal for the basin,” (California Water Code (CWC) § 10733(b)).

Newly formed GSAs have additional layers of potential conflict that may not be present in interpersonal or even other inter-organizational contexts with well-established processes and precedents, including questions of who has the authority, what process(es) should be followed when exercising that authority and what the constraints on the exercise of that authority are. These questions are particularly pertinent when agencies with similar or overlapping authorities are working together – as is common practice under SGMA. Questions regarding authority, tight legal and regulatory timelines, a lack of existing precedents and the need to represent agency and constituent interests have the potential to exacerbate conflicts under SGMA. In some cases, where authoritative interpretations of legal authority and limits have not been established yet, litigation may be necessary and warranted.

When institutions have to coordinate and cooperate, as JPAs do, identifying processes and forums for resolving conflicts is crucial (Marta et al. 2014). However, developing effective mechanisms for resolving conflicts and using them can be challenging. Learning from the experiences of past water management agencies in California, as well as the natural resource conflict resolution literature more broadly, may help GSAs develop robust dispute resolution plans with processes to incentivize and streamline their resolution.