California originally followed the English rule of absolute ownership with respect to groundwater. However, in 1903, in the case Katz v. Walkinshaw, the California Supreme Court decided that the absolute ownership rule was not appropriate and instead adopted the rule of “correlative rights.” This case determined that landowners overlying aquifers can put that groundwater to a reasonable and beneficial use on the overlying land, but they must share available groundwater with other overlying landowners (hence the term “correlative” rights). Later cases indicated that if there is surplus water after the needs of all overlying pumpers have been met (meaning that additional available water under the threshold of “safe yield”), then that surplus water may subject to appropriation by non-overlying landowners under the rules of prior appropriation. California case law includes a final layer of complication: pumpers may acquire “prescriptive” rights if the overall level of pumping puts and keeps the basin in overdraft for a period of five or more years. Through prescriptive rights, appropriative pumpers (such as cities) may acquire equal priority to pump as overlying users (such as irrigators).
Historically, there were four options in California for local groundwater management. First, some groundwater basins in California are “adjudicated” basins. A formal adjudication can be initiated by parties in dispute over groundwater. In a formal adjudication, a court or the State Water Resources Control Board will determine an “equitable apportionment” of water between the competing parties. The court is required to determine the safe yield of the basin, and allocate water available under that safe yield pursuant to the correlative rights doctrine and related rules.
Second, the California legislature has created 12 special act districts within the state that provide legal powers to limit extractions. In each of these areas, an agency is delegated certain powers over groundwater. These powers vary based on the specific problems faced by that area.
Third, the California legislature has passed a few bills allowing for groundwater management by local agencies. First, AB 3030, passed in 1992, allowed local agencies to voluntarily create groundwater management plans. In 2002, the legislature passed SB 1938, which required that areas public agencies looking for state money for groundwater projects submit a groundwater management plan.
Fourth, cities and counties in California are allowed to regulate groundwater. A number of areas have created local groundwater ordinances. Almost all jurisdictions regulate well permitting.
Most recently, in 2014, California passed the Sustainable Groundwater Management Act (SGMA), which mandates sustainability for groundwater basins in the state.
In California, groundwater accounts for 39.6% of the total freshwater supply. Groundwater constitutes 82.6% of total individual household supply and 44.9% of total municipal supply. Irrigation consumes 70.7% of groundwater in California.
Summary of the Law
Certain areas of California are governed by specific statutory rules. In the areas not covered by the rules discussed below, the common law principles discussed above still apply.
Special Act Districts
A number of areas in California have special groundwater rules outlined in the state Water Code and Water Code Appendix. There are 13 such districts. Each district has specific rules outlined in the statute. In some of these areas, the district is granted permitting power for groundwater. The specific rules vary among districts based on the problems faced.
Sustainable Groundwater Management Act
In 2014, the California legislature passed the Sustainable Groundwater Management Act to promote the sustainable management of groundwater. For the purposes of SGMA, the state is divided into a number of groundwater basins as delineated in the Department of Water Resources (DWR) document entitled Bulletin 118. SGMA required DWR to designate each of these basins as either very low, low, medium, or high priority by the end of January 2015. The law outlines the factors that DWR was to consider in making these designations.
Under SGMA, each high and medium priority groundwater basin in the state had to form a Groundwater Sustainability Agency (GSA) by June 30, 2017. A GSA consists of a local agency, or a group of local agencies, with the term “local agency” defined as a local public agency with water supply, water management, or land use responsibilities within a groundwater basin. Existing local agencies (such as county governments) may serve as GSAs, or new agencies may be formed for that specific purpose. In basins in which there is no local agency with authority over water supply management, the county itself becomes the GSA. If no GSA was designated by June 30, 2017, the state will act as the GSA for that basin.
The GSA or GSAs in each basin covered by the statute must prepare one or more Groundwater Sustainability Plans (GSP) for that basin. The statute encourages very low and low priority basins to develop GSPs. In a medium or high priority basin with conditions of critical overdraft, the GSA must approve its GSP by January 31, 2020. In medium and high priority basins without conditions of critical overdraft, the GSAs have until January 31, 2022. DWR must review all GSPs to ensure adequacy, and can request changes from the GSAs if there are problems. Additionally, DWR must reevaluate GSPs every five years. GSAs must also regularly reevaluate the GSPs.
The GSPs must achieve sustainability in the basin within 20 years of adoption. SGMA requires that a basin be operated within its sustainable yield. It defines “sustainable yield” as “the maximum quantity of water . . . that can be withdrawn annually from a groundwater supply without causing an undesirable result.” In turn, “undesirable results” include: “(1) the chronic lowering of groundwater levels indicating a significant and unreasonable depletion of supply, (2) significant and unreasonable reduction of groundwater storage, (3) significant and unreasonable seawater intrusion, (4) significant and unreasonable degraded water quality, including the migration of contaminant plumes that impair water supplies, (5) significant and unreasonable land subsidence that substantially interferes with surface land uses, and/or (6) surface water depletions that have significant and unreasonable adverse impacts on beneficial uses of surface water.” A GSP must include “interim milestones” for every five years, as well as “measureable objectives,” to achieve the sustainability goal. SGMA also requires GSAs to discuss a number of other specific topics within the GSPs.
SGMA grants GSAs a number of powers that allow them to implement the GSPs. GSAs can place restrictions on well production, prohibit construction on new wells, and create well-spacing requirements. They can require that well owners measure and report production. GSAs are allowed to conduct investigations to determine needs, create plans, create fees, and monitor compliance and enforcement. In order to augment water supply availability, GSAs can acquire property, water rights, and water supplies and can construct, operate, and maintain works or improvements. GSAs can treat and manage polluted water. They can create fees in order to fund management actions. GSAs can impose penalties on individuals that pump groundwater in excess of the amount allowed in the GSP, as well as for other violations. GSAs do not have authority to issue well construction permits, unless the counties delegate that power.
The State Water Resources Control Board can take action if local efforts are not sufficient. SWRCB can step in if no GSA is designated, if no GSP is adopted, if the GSP is not adequate, or if the GSP is not implemented. SWRCB will create an interim plan for the local area. The local area can later petition to regain control from SWRCB.
Next: Law & Practice »