Groundwater Pumping Allocations under California’s Sustainable Groundwater Management Act: Considerations for Groundwater Sustainability Agencies

Environmental Defense Fund (EDF) | July 1st, 2018

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.

Hemet San Jacinto Stipulated Judgment

Superior Court of California, County of Riverside | April 18th, 2013

Background from "An Evaluation of California’s Adjudicated Groundwater Basins," Langridge et al, 2016 (UC Davis) Groundwater problems in the San Jacinto Basin were f

Background from "An Evaluation of California’s Adjudicated Groundwater Basins," Langridge et al, 2016 (UC Davis) Groundwater problems in the San Jacinto Basin were first addressed by the court in a 1954 judgment that allocated pumping rights for the Fruitvale Mutual Water Company in the upper San Jacinto Basin. Declining groundwater levels persisted into the 1970s, and local water purveyors attempted to develop a groundwater management plan to address the declines. Eastern Municipal Water District (EMWD), which had acquired the Fruitvale Company in 1972, worked with the water purveyors in the 1990s to implement an AB 3030 groundwater management plan for the West San Jacinto Groundwater Management Area. In 2001, a Memorandum of Understanding between the Department of Water Resources (DWR) and local agencies required a water management plan for the Hemet/San Jacinto Groundwater Management Area, the eastern portion of the San Jacinto Basin, and a plan was released in 2007. At the same time, the Soboba Band of Luiseño Indians, negotiating with the local agencies to specify their groundwater rights from the Hemet/San Jacinto Groundwater Management Area, also pushed for a management plan. These negotiations culminated in the 2008 Soboba Settlement Agreement Act that established their water rights. A 2013 stipulated judgment allocated pumping rights for public water agencies, provided for water rights outlined in the Soboba Settlement Agreement, incorporated the Water Management Plan, and mandated a Watermaster."

How are Western water districts managing groundwater basins?

California Agriculture (UCANR) | March 13th, 2018

Making the transition from open-access groundwater rights to sustainable groundwater management is a formidable task for newly formed groundwater sustainability agencies

Making the transition from open-access groundwater rights to sustainable groundwater management is a formidable task for newly formed groundwater sustainability agencies in California. As agencies begin to decide how to make equitable water allocations, how to monitor groundwater use and what mix of supply- and demand-side mechanisms to adopt to satisfy sustainability criteria, the groundwater management strategies in place across other basins in the western United States are worth studying. We surveyed 18 groundwater districts in California and other Western states to identify the management approaches and practices they have instituted. The conclusions we draw suggest a correlative rights framework of water allocation with phase-ins for heavy users; metered pumping; flexible arrangements for trading and carrying over allocations for multiple years; and incentivizing groundwater recharge, including recharge from deep percolation from crops. Rigid formulas for significantly reducing groundwater use in medium- and high-priority basins are likely to have significant negative effects on the regional economy.

Hudson v. Dailey

Supreme Court of California | December 1st, 1909

Implementing Ecosystem Based Management

Duke Environmental Law & Policy Forum | June 7th, 2021

Improving Water Right Enforcement Authority

California State Water Resources Control Board (SWRCB) | April 5th, 2012

The State Water Board’s enforcement authority for water right is inconsistent with its broad enforcement authority over water quality matters. The recommendations conta

The State Water Board’s enforcement authority for water right is inconsistent with its broad enforcement authority over water quality matters. The recommendations contained in this report would enhance the ability of the State Water Board to take appropriate enforcement actions over water right matters.

Indian Reserved Water Rights Under the Winters Doctrine: An Overview

Congressional Research Service (CRS) | June 8th, 2011

Although the federal government has authority to regulate water, it typically defers to the states to allocate water resources within the state. The federal government ma

Although the federal government has authority to regulate water, it typically defers to the states to allocate water resources within the state. The federal government maintains certain federal water rights, though, which exist separate from state law. In particular, federal reserved water rights often arise in questions of water allocation related to federal lands, including Indian reservations. Indian reserved water rights were first recognized by the U.S. Supreme Court in Winters v. United States in 1908. Under the Winters doctrine, when Congress reserves land (i.e., for an Indian reservation), Congress also reserves water sufficient to fulfill the purpose of the reservation. As the need for water grows with the development of new industries and growing populations, the tension arising from the allocation of scarce water resources highlights the difficulties that often surround reserved water rights, particularly in the western states. Western states generally follow some form of the prior appropriation system of water allocation. The prior appropriation system allocates water to users based on the order in which water rights were properly acquired. Because Indian reserved water rights date back to the government’s reservation of the land for the Indians, these water rights often pre-date other water users’ claims. Although the prior appropriation system’s reliance on seniority provides a degree of certainty to water allocation, Indian reserved water rights may not have been quantified at the time of reservation. Because Winters did not dictate a formula to determine the quantity of water reserved, courts apply different standards to quantify tribal reserved water rights. As a result, other water users may not know whether, or the extent to which, Indian reserved water rights have priority. Because of these uncertainties, Indian reserved water rights are often litigated or negotiated in settlements and related legislation. This report will examine the creation of Indian reserved water rights under the Winters doctrine. It will analyze the scope of the doctrine, including the purposes for which the water right may be claimed and the sources from which the water may be drawn. It will also discuss various quantification standards that courts have used in attempting to clarify Indian reserved water rights. Finally, it will examine the effect of the McCarran Amendment, through which Congress extended jurisdiction to state courts to hear disputes involving Indian reserved water rights.

Indian Water Rights in the West

Western States Water Council | December 1st, 1983

Indian Water Rights Settlements

Congressional Research Service (CRS) | March 27th, 2017

In the second half of the 19th century, the federal government pursued a policy of confining Indian tribes to reservations. These reservations were either a portion of a

In the second half of the 19th century, the federal government pursued a policy of confining Indian tribes to reservations. These reservations were either a portion of a tribe’s aboriginal land or an area of land taken out of the public domain and set aside for a tribe. The federal statutes and treaties reserving such land for Indian reservations typically did not address the water needs of these reservations, a fact that has given rise to questions and disputes regarding Indian reserved water rights. Dating to a 1908 Supreme Court ruling, courts generally have held that many tribes have a reserved right to water sufficient to fulfill the purpose of their reservations and that this right took effect on the date the reservations were established. This means that, in the context of a state water law system of prior appropriations, which is common in many U.S. western states, many tribes have water rights senior to those of non-Indian users with water rights and access established subsequent to the Indian reservations’ creation. Although many Indian tribes hold senior water rights through their reservations, the quantification of these rights is undetermined in many cases. Tribes have pursued quantification of their water rights through both litigation and negotiated settlements. The settlements involve negotiation between tribes, the federal government, states, water districts, and private water users, among others. They aim to resolve conflict between rights holders and allow the parties to determine specific terms of water allocation and use with certainty. Over the last 50 years, negotiated settlements have been the preferred course for most tribes because they are often less lengthy and costly than litigation. Additionally, many stakeholders have noted that these negotiated agreements are more likely to allow tribes not only to quantify their water rights on paper but also to procure access to these resources in the form of infrastructure and other related expenses, at least in some cases. After being negotiated, approval and implementation of Indian water rights settlements require federal action. As of 2017, 36 Indian water rights settlements have been federally approved. Of these, 32 settlements were approved and enacted by Congress and 4 were administratively approved by the U.S. Departments of Justice and the Interior. After being congressionally authorized, federal projects associated with approved Indian water rights settlements generally have been implemented by the Bureau of Reclamation or the Bureau of Indian Affairs (both within the Department of the Interior), pursuant to congressional directions. Congress has appropriated discretionary and mandatory funding (and, in some cases, both) for these activities, including in recent appropriations bills. Several Indian water rights settlements have been considered and enacted, including three that were enacted in the 114th Congress. A primary challenge facing new settlements is the availability of federal funds to implement ongoing and future agreements. Indian water rights settlements often involve the construction of major new water infrastructure to allow tribal communities to access water they hold rights to, and obtaining federal funding for these projects can be difficult. As a result, some settlements have been renegotiated to reduce their federal costs. At issue for Congress is under what circumstances (if any) to approve new Indian water rights settlements and whether to fund (and in some cases amend) new and ongoing settlements. Some argue that resolution of Indian water rights settlements is a mutually beneficial means to resolve long-standing legal issues, provide certainty of water deliveries, and reduce the federal government’s liability. Others argue against authorization and funding of settlements, either in general or with regard to specific activities associated with individual settlements. This report provides an overview of Indian water rights settlements. It analyzes issues surrounding water rights settlements and the negotiation process, as well as implementation challenges and related issues for Congress.

Indian Water Rights Settlements

Congressional Research Service (CRS) | November 27th, 2017

This report provides an overview of Indian water rights settlements. It analyzes issues surrounding water rights settlements and the negotiation process, as well as imple

This report provides an overview of Indian water rights settlements. It analyzes issues surrounding water rights settlements and the negotiation process, as well as implementation challenges and related issues for Congress.