By Ruth Langridge, University of California – Santa Cruz [i]
Groundwater is a critical resource in California. While the 2014 Sustainable Groundwater Management Act (SGMA) established new requirements and increased state oversight for many overdrafted basins,[ii] groundwater basins adjudicated before the passage of SGMA are exempt from the statute’s requirements[iii].
Groundwater adjudication is where water users turn to the courts to resolve a dispute about water in a basin[iv]. Theoretically, the court defines and quantifies water rights for all groundwater users in the basin, and appoints a Watermaster to ensure that the basin is managed in accordance with the court’s adjudication decree. Prior to adjudication, a “physical solution,” often involving allocating a “safe yield” quantity among users and importing water, may be negotiated, and the court can accept it in whole or in part, or reject it and craft a different solution to manage the basin.
Adjudicated basins underlie major areas in the state, including much of the Los Angeles and Inland Empire region along with desert and coastal areas[v]. Most are in Southern California, with little precipitation and heavy dependence on imported water. Many basins were adjudicated to reduce overdraft and support additional growth through the importation of water, and consequently establish responsibility for paying for the imported water.
While adjudication is often promoted as the most efficient institutional approach to manage groundwater in the state[vi] there was limited analysis of the recent condition of adjudicated basins. The State Water Resources Control Board contracted with our research team to evaluate how adjudicated basin performance aligned with SGMA’s goals for sustainable groundwater management[vii]. We reviewed judgments, technical literature and other archival sources and conducted telephone interviews with key managers and participants in the adjudication process. The Watermaster, a technical expert, or a lawyer who participated in the adjudication process, reviewed and commented on each basin summary. Some conclusions from this examination are summarized below.
Groundwater adjudication is fundamentally not about the sustainable management of a groundwater basin.
Rather, adjudication is about the court resolving a controversy between parties about a problem in the basin and designating who is responsible for providing a solution. Controversies can include whether the basin is in overdraft, who has a right to water, how much water can be withdrawn individually and collectively, who is responsible for providing or paying for sufficient water for future growth, and how overdraft and safe yield should be defined and calculated. Adjudication is rarely about the full spectrum of requirements for sustainable management addressed in the SGMA. This is a central issue with adjudications if the goal is the sustainable management of a groundwater basin. Moreover, although the court in principle resolves the initial questions posed in adjudication, parties frequently return to court.
Water rights are the central focus of adjudication
The legislature noted this narrow reach of adjudication in its definition of “comprehensive adjudication” as “an action filed in superior court to comprehensively determine rights to extract groundwater in a basin.”[viii] The court may approve a physical solution to remedy the problem in the basin, and the physical solution can overlap with some goals of the SGMA. However, the sustainable management of a groundwater basin is not the underlying purpose of the adjudication or the role of the court.
In practice, individual water rights often are not quantified in adjudications. Although California’s water laws usually dictate the priority of water rights, other factors, including the needs of the individual parties, are often negotiated and incorporated into final judgments. We found that allowable withdrawals often became concentrated in a small number of users in the years after adjudication. Small groundwater users and disadvantaged communities are rarely included in the physical solution.
Established water rights are difficult to alter, but the conditions placed on water rights in a basin can be quite flexible and vary considerably. Requirements to reduce demand, to pay for replenishment water if a water right is exceeded, carryover credits, and whether a water right can be transferred vary by basin. Each condition can affect both the sustainable management of the basin and the communities that rely on the basin for water supply.
With the exception of basins under mutual prescription, requirements to reduce demand did not necessarily apply equally to all pumpers. Aligning with California water rights priorities, overlyers were often allowed to pump with limited restrictions, generally did not have to reduce pumping until appropriators reduced their withdrawals, and sometimes did not have to reduce pumping at all, or only in an extreme drought. With respect to carry-over credits, no expiration date resulted in a large accumulation of stored water credits in some basins that if used could result in significant basin overdraft.
Transfers are widely promoted to facilitate the market-based exchange of water rights. Most transfers in adjudicated basins are from overlyers, usually agricultural users, to appropriators, who are municipalities or water purveyors. Transfers affected land use and had both positive and negative changes. In the Mojave Basin adjudication, a desert area with little precipitation, some farmers sold their production rights, usually to municipal producers. This generally occurred in the Alto Subarea, and the transfers supported significant municipal growth[ix]. It is difficult to temporarily “fallow” a large municipal area during an extreme drought.
Approaches to determining safe yield,[x] overdraft, and groundwater trends are variable with no standards to determine these quantities.
The court is theoretically tasked with calculating the “safe yield” of a basin in determining water rights[xi]. SGMA defines sustainable yield as “The maximum quantity of water, calculated over a base period representative of long-term conditions in the basin and including any temporary surplus, that can be withdrawn annually from a groundwater supply without causing an undesirable result.” Undesirable results include permanently lowered groundwater levels, subsidence, degradation of water quality in the aquifer, or decreased stream flows[xii]. These terms are defined in multiple ways among adjudicated basins and in some basins are not calculated or used[xiii]. Additionally, specific metrics in many basin are often calculated relative to a previous base period of pumping[xiv] and frequently do not account for future climate change impacts.
Overdraft definitions also varied and most basins do not address accumulated overdraft. Additionally, controlled overdraft, sometimes called temporary surplus, is a strategy in several basins. This is where the amount is withdrawn exceeds the safe yield of the basin to create storage space to capture water in wet years. An issue is whether water will be available to the basin in wet years and if it will be used to recharge groundwater.
Most adjudicated basins rely on imported water to manage overdraft and/or to provide for future water needs. With climate change, more emphasis on net water use reduction is essential.
The heavy reliance on imported water is currently problematic for many basins as the cost of imported water has increased and it has become less available, and some basins anticipate that cost and scarcity will continue to be problems in the future.
A positive feature of adjudication is that a management structure is usually put in place.
The Watermaster is supposed to monitor the basin and provide annual reports to the court, which has continuing jurisdiction. Watermasters in many basins did provide strong oversight, but the appointment of a Watermaster did not always occur or did not occur in a timely manner, and reporting was not always required or was limited in scope.
The key challenge will be to resolve conflicts between strategies to move towards sustainable groundwater management and the priorities of individual water rights holders.
We recommend that adjudications always include a groundwater management plan, and annual reports that are accessible with a clear standardized format and conclusions. Projections for future climate changes and demographic shifts should be incorporated into water supplies and demands, and definitions of safe yield should incorporate consideration of interconnections between surface and groundwater and pumping impacts on relevant ecosystems.
To bring adjudication outcomes into line with SGMA, in 2015 the Legislature enacted two bills that primarily focus on reducing the costs and extended time period of the adjudication process[xv]. They also create processes to help ensure that adjudication is fair, comprehensive and aligned with SGMA goals for sustainable groundwater management. While the legislation does not force an adjudication to comply with the substantive terms of SGMA, the court needs to first consider any existing SGMA plan when adopting a physical solution[xvi].
The literature emphasizes that enforceable rules regarding access and use of common pool resources are essential for ensuring sustainable management. Our research points to the challenges and opportunities for adjudication in attempting to reach sustainable management.
Ruth Langridge, Abigail Brown, Kirsten Rudestam and Esther Conrad, 2016, An Evaluation of California’s Adjudicated Groundwater Basins, Report for the State Water Resources Control Board, http://www.waterboards.ca.gov/water_issues/programs/gmp/resources.shtml
Ruth Langridge, Stephen Sepaniak and Esther Conrad, 2016, An Evaluation of California’s Special Act Groundwater Districts, Report for the State Water Resources Control Board, http://www.waterboards.ca.gov/water_issues/programs/gmp/resources.shtml
Other Relevant Work of Interest:
Enion, Rhead, (2013) “Allocating Under Water: Reforming California’s Groundwater Adjudications,” Emmitt Center on climate Change and the Environment, UCLA School of Law, Policy Brief #4;
Blomquist, William (1992) Dividing the Waters: Governing Groundwater in Southern California. ICS Press, San Francisco, CA;
Lipson, Walter (1978) Efficient Water Use in California: The Evolution of Groundwater Management in Southern California, Rand Corp: Santa Monica, http://www.rand.org/pubs/reports/2009/R2387.2.pdf
Links to the relevant legislation can be found at:http://www.water.ca.gov/groundwater/groundwater_management/legislation.cfm; 2014 Sustainable Groundwater Management Act: AB 1739 (Dickinson), SB 1168 (Pavley), and SB 1319 (Pavley). Additional bills signed by the Governor in 2015 to amend the California Water Code: SB 226 (Pavley) – addressing groundwater adjudications, SB 13 (Pavley), AB 939 (Salas), and AB 617 (Perea)
[i] This research was funded by the State Water Resources Control Board, The John Randolph Haynes and Flora Haynes Foundation and UC Water Security and Sustainability
[ii] SGMA covered 127 high or medium priority basins that were designated as high or medium priority under the California Statewide Groundwater Elevation Monitoring (CASGEM)
[iii] The SGMA was followed by the passage of Assembly Bill 1390 (AB 1390) and Senate Bill 226 (SB 226) in 2015 that provide some procedures for groundwater adjudications.
[iv] Adjudication can be a civil action filed in a county superior court or it can be a process initiated by the State Water Resources Control Board, although the latter is rare.
[v] The West Coast and Central Basins alone are two of the most utilized urban basins in California with a service area that is home to over ten percent of California’s population residing in 43 cities in southern Los Angeles County (http://www.prnewswire.com/news-releases/wrd-board-approves-landmark-master-plan-to-expand-groundwater-supplies-300341313.html).
[vi] While problems include the cost and the extended period of litigation, the benefits are considered to be the assignment of property rights with a transferable water entitlement, and the ability of the Watermaster to regulate groundwater production while also allowing water users flexibility in water planning. See Enion, Rhead, (2013) “Allocating Under Water: Reforming California’s Groundwater Adjudications,” Emmitt Center on climate Change and the Environment, UCLA School of Law, Policy Brief #4; Blomquist, William (1992) DIVIDING THE WATERS: GOVERNING GROUNDWATER IN SOUTHERN CALIFORNIA. ICS Press, San Francisco, CA; and Lipson, Walter (1978) Efficient Water Use in California: The Evolution of Groundwater Management in Southern California, Rand Corp: Santa Monica, http://www.rand.org/pubs/reports/2009/R2387.2.pdf
[vii] The SWRCB provided the list of all the basins adjudicated prior to the passage of SGMA. Basins with pending adjudications were not included.
[viii] Senate Bill 226 and Assembly Bill 1390 passed by the California Legislature in the 2015–2016 Regular Session.
[ix] Comment from David Seielstad, Senior Watermaster Technician, Mojave Water Agency, 8/2-15.
[x] While the term “sustainable yield” is invariably implied in court decisions, most groundwater adjudications utilize the term “safe yield.”
[xi] A distinction is made between safe yield as a purely physical metric defined by hydrologists and “sustainable yield,” which accounts for both physical and social conditions in determining appropriate withdrawals to minimize declining levels and ensure the long-term resilience of groundwater systems.
[xiii] Safe yield sometimes refers just to local precipitation, but can also include artificial water such as imported water or recycled water, as well as return from imported flows.
[xiv] This is the case even with basins that did not use the Doctrine of Mutual Prescription (initially defined by the court in the Raymond Basin adjudication) to determine both water rights and water allocations.
[xv] SB 226 (Pavley) and AB 1390 (Alejo)
[xvi] Code of Civ. P., § 849