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August 21, 2020  |  Written by Somach Simmons & Dunn

Featured Virtual Event: SGMA and Adjudication Session, Western Groundwater Congress - September 16, 2020

Join Aaron Ferguson and Nick Jacobs for their virtual conference session at the Third Annual Western Groundwater Congress

Presented by the Groundwater Resources Association of California, the Third Annual Western Groundwater Congress takes place September 14-17, 2020, in a virtual conference format. On September 16, shareholders Aaron Ferguson and Nick Jacobs will appear via live Q&A in conjunction with their pre-recorded session titled “SGMA Isn’t Working – When It’s Time to Adjudicate. Wait, When is it Time?”

Visit GRA’s website for more information or to register for the conference.

Third Annual Western Groundwater Congress – GRA Goes Virtual Hollywood

When: September 14-17, 2020

Where: online (paid registration required)

Session Summary:

Groundwater Sustainability Agencies (GSA) recently completed Groundwater Sustainability Plans (GSP) for high and medium priority basins subject to critical conditions of overdraft. GSPs are due for the remaining high and medium priority basins in less than twenty-four months. GSPs will necessarily involve complicated hydrogeology/hydrology, but the basic issues/questions for water users will be: what is the basin’s annual safe yield; to what extent will the GSP safe yield reduce my ability to pump groundwater; will the GSA offer supplemental water supplies and at what cost; and does the GSP and its implementation honor my water rights? 

There is no doubt that implementation of GSPs will result in significant impacts to groundwater users in many California basins. Due to inaction or infighting, the State Water Resources Control Board (SWRCB) may declare some basins “probationary” and assert jurisdiction to directly regulate those basins. SGMA confers many powers on GSAs, but not the power to determine or change water rights. (Wat. Code, § 10720.5(b).) The law is unclear with regard to how GSAs may enforce pumping restrictions to remedy overdraft conditions. SGMA’s prohibition on determining water rights and the lack of clear rules about enforcement of pumping restrictions is certain to result in conflict once GSAs and the SWRCB attempt to exercise the regulatory authority that SGMA confers upon them. 

These conflicts are likely to lead groundwater users to evaluate their options for protecting their rights and access to critical groundwater supplies. Groundwater users can try to negotiate within the GSA/GSP framework to achieve a workable solution. Groundwater users will have the opportunity to litigate specific GSA or SWRCB decisions related to GSP implementation by arguing that such actions are an abuse of discretion. If SGMA planning and related litigation fails, groundwater users have the option of initiating a groundwater adjudication to obtain a conclusive determination of relative rights to groundwater and assignment of responsibility for implementation of projects to ensure basin safe yield. 

Our session highlights key aspects of a GSP that groundwater users should evaluate to determine whether a GSP presents a fair and workable solution. To facilitate this evaluation, we’ve identified questions for groundwater users to ask regarding their water rights. The answers to these questions should help groundwater users negotiate with a GSA regarding proposed projects and regulatory actions to manage groundwater conditions. These same answers will also help groundwater users determine whether a groundwater adjudication may lead to more favorable results with respect to available supplies at a lower cost. To help compare the pros and cons of a GSP to adjudication, we explain groundwater adjudications, the relationship between a GSP and an adjudication, and what happens once the court issues a judgment. 

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