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April 8, 2014  |  Written by Aaron A. Ferguson

Groundwater Suit May Be a Sign of Things to Come as the Drought Takes Hold and Groundwater Demand Increases

A Tulare County Superior Court judge recently ruled that Sandridge Partners, LP (Sandridge) may not pump and export groundwater from its land until resolution of a trial to determine whether Sandridge has the right to pump such groundwater for use outside the subbasin. Lower Tule River Irrigation District v. Sandridge Partners, LP, No. 253401 (Super. Ct. Tulare Co. 2014).  In light of the unprecedented drought, Central Valley irrigators are likely to not only produce more groundwater, but also to look for creative ways to use groundwater to meet irrigation demands.  As groundwater production increases, additional lawsuits may be filed to settle competing claims to groundwater supplies.

As background, in 2012, Sandridge purchased property located within the Lower Tule River Irrigation District (LTRID), an irrigation district located within the San Joaquin Valley.  In 2013, Sandridge did not grow crops on the property, yet it produced groundwater from three wells located on the subject land.  In support of its motion to stop Sandridge from pumping during trial, LTRID argued that Sandridge has improperly appropriated water from the Tule Subbasin by pumping water from the wells located on its property and using the water to irrigate orchards located 25 miles away and outside the boundaries of the Tule Subbasin.

By law, when a producer pumps groundwater for use on land that does not overlie the groundwater basin from which the water is pumped, the producer must rely on an appropriative right.  Appropriators are only entitled to water surplus to the needs of overlying right holders.  As such, if a groundwater basin is in an overdraft condition, a producer may not acquire an appropriative right, except by prescription.  Appropriative groundwater rights are subject to the first-in-time, first-in-right rule.

In support of its motion for a preliminary injunction, LTRID asserted that the Tule Subbasin is overdrafted, and that surplus groundwater is not available for appropriation.  LTRID argued that its appropriative right to local groundwater is senior to any right that Sandridge claims.  On these grounds, LTRID sought to permanently stop Sandridge from pumping groundwater for use outside the Tule Subbasin.

In opposition to LTRID’s position, Sandridge raised a number of objections to LTRID’s claims.  Sandridge argued that the water pumped from the property located within the LTRID was used on adjacent properties within the Tule Subbasin that Sandridge and another landowner own.  Sandridge contended that it has an agreement with an adjacent water district to use groundwater and that this agreement provides the basis to use local groundwater on orchards located outside the Tule Subbasin.  Sandridge claimed that LTRID lacks sufficient data to establish that the Tule Subbasin is subject to overdraft.

The Court, in support of its ruling in favor of LTRID, found that LTRID had offered legal authority sufficient to demonstrate the appropriative nature of Sandridge’s groundwater use.  The Court concluded that LTRID had shown that the Tule Subasin water levels have declined and that no surplus water is available for appropriative use by Sandridge.  On these facts, the Court reasonably determined that LTRID is likely to prevail at trial.  Also, LTRID’s showing was sufficient for the Court to rule that LTRID would be harmed if Sandridge is allowed to use water outside the Tule Subbasin during the pendency of the litigation.  Therefore, the Court granted LTRID’s request to enjoin Sandridge from pumping during trial.

As the drought takes hold, this suit may be just the front end of a wave of litigation to resolve competing groundwater claims.  For more information, please contact Aaron Ferguson ataferguson@somachlaw.com.

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