AB 1739; SB 1168, 1319: Groundwater Management

January 6, 2015

New Laws - Supplement to Daily Journal

With the passage of the Sustainable Groundwater Management Act in 2014, California is on the verge of a seismic shift in how the state manages and regulates extraction of groundwater. Until now, the right to extract and use groundwater has been virtually unregulated, with property owners having the right to extract whatever water lay beneath their land. Not for long.

On Sept. 16, 2014, the state Legislature and Gov. Jerry Brown passed a package of bills, Assembly Bill 1739, Senate Bill 1168 and Senate Bill 1319, that collectively constitute the act. The law is designed to provide a long-term solution to a problem that has grown dire. The overuse of groundwater has stretched California’s water supply thin, leaving many aquifers in a state of constant overdraft and some parts of the state sinking by as much as a foot per year.

The act aims to establish a state policy that 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.

The law will be implemented primarily through local groundwater sustainability agencies (GSAs), which will be granted authority to monitor and restrict pumping of groundwater. GSAs may restrict the number of groundwater wells drilled in a given area, require users to track pumping, and impose fees to fund the costs of their programs. The state acts as a backstop; 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 probationary and the State Water Resources Control Board may implement an interim plan.

Many property owners who rely heavily on groundwater are incensed at the idea that pumping rights could suddenly be curtailed. And with the bulk of regulatory authority concentrated at the local level, the threat of uneven enforcement looms large. Add to that the fact that the law’s mandates are governed by terms like “undesirable result” and “sustainable,” and widespread litigation is a near-certainty.

The law is effective as of Jan. 1, 2015, and the first GSAs will likely be formed in 2016. But the regulated community would be wise to pay attention to what is happening behind the scenes now, as state and local agencies work to prioritize basins and piece together how to measure and achieve the act’s sustainability goals.