“
Designation
n of one agenccy as the GSA…
… could generaate
conflict am
mong water pro
oviders by creaating inconsiste
ent
regulationss and policies.
”
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more at water.bhfs.com
Th
he Sustain
nable Grou
undwater Managem
ment Act
Be
enefits an
nd Risks to
o Non-GSA
A Water P
Providers
Thee Sustainable Groundwater Managementt Act (the “Act”)1 permits loccal agencies to
o establish Gro
oundwater Su
ustainability
Ageencies (“GSA”) in all basins, and requires the developm
ment and impleementation off a Groundwater Sustainabiility Plan
(“P
Plan”)2 in mediium- and high-priority basin
ns designated by the Departtment of Wateer Resources ((“DWR”). Thiss creates
opp
portunities, re
esponsibilities, and risks for water provide
ers. The Act grrants the GSA the tools to ssustainably maanage
Callifornia’s mostt at-risk groundwater basinss. However, it defines the GSSA3 as “one orr more local agencies.”4 Thee Act
autthorizes otherr water providers, such as re
egulated privaate water com panies, to join
n local agenciees in the creattion of a GSA
5
thrrough coordinaation agreeme
ents if the locaal agencies ap
pprove. Alongg with this opp
portunity to p
participate in ggovernance,
non
n-GSA water providers
p
will face
f
several potential benefi
fits and challeenges as outlin
ned below.
Benefits to Non-GSA Wate
er Providers:
•
Increased Ce
ertainty and Water
W
Supply Reliability Ovver the Long-Te
Term: An essen
ntial potential benefit of thee Act is
increased predictability an
nd long-term water
w
supply reliability.
r
•
W
Rights: Although the
e Act provides for compreheensive regulation of all at-rissk groundwater supplies
Respect for Water
for the first time,
t
California’s existing waater right syste
em—a mix of both the riparian and apprropriative rightt systems—
is left intact. Water providers should be comforted byy the fact that the Act consistently and reepeatedly decllares the
Legislature’s intent to presserve the secu
urity of water rights6 and thaat the Act doees not authorize a local agen
ncy to
7
make a bindiing determinaation of the waater rights. In
n the event of litigation, these legislative d
declarations sshould aid
water provid
ders’ claims to the extent they possess a basis
b
to assertt senior waterr rights.
•
Water Provid
der Participattion: Water providers should
d embrace thee Act’s mandaated open proccess for groun
ndwater
sustainabilityy planning, paarticularly the directive to GSAs to consideer the interestts of other staakeholders, inccluding the
owners of pu
ublic water sysstems.8 The Act
A requires that the GSA enncourage the ““active involveement” of all sstakeholders,
particularly those
t
operatin
ng public wate
er systems, in the
t developm
ment and impleementation off the Plan.9 Th
his should
afford non-G
GSA water provviders a venue
e to voice concerns and inp ut. The Act allso authorizess multiple agen
ncies
(including waater corporations regulated
d by the Publicc Utilities Com
mmission) to en
nter into a coo
ordination agrreement to
Decem
mber 2014
develop a Plaan for the shared basin.10 Further,
F
other portions of thhe new law req
quire addition
nal coordinatio
on between
land use plan
nning agencies (cities and co
ounties) and public
p
water syystems with 33,000 or more service conneections.11 As
a result, operators of public water systems should exp
pect increasedd opportunitiees to coordinaate with land u
use
planning age
encies.
•
Adjudication
n of Water Rigghts: In the evvent a plan to sustainably
s
m anage a particcular groundw
water basin cannot be
adopted with
hout limiting groundwater
g
extractions
e
byy some or all uusers, a judiciaal action to decclare all waterr rights in a
basin that is subject to the
e Act is likely, especially
e
if an
nticipated folloow-on legislattion providingg for streamlin
ned
adjudications is adopted.122 Although litiigation is noto
oriously protraacted and expeensive, the result is increased certainty
for all ground
dwater users and
a a more du
urable plan.
Rissks to Non-G
GSA Water Prroviders:
•
Decreased Certainty Overr the Short-Terrm: Although the Act may i ncrease a watter provider’s certainty overr the long
run regardingg the availability of the grou
undwater supp
ply to meet exxisting and pro
ojected custom
mer demands, while the
Plan is being developed (and during anyy litigation thatt may follow),, the Act may create significcant uncertain
nty. In the
developmentt of a Plan, hard decisions regarding alloccating cutbackks and costs off replenishment among useers will often
be necessaryy. Such curtailments may trigger litigation
n to adjudicatee water rightss.13 Other conttroversial pow
wers given to
GSAs that maay adversely im
mpact non-GSSA water proviiders include tthe power “to
o control groun
ndwater extraactions by
regulating, lim
miting, or susp
pending extractions from in
ndividual grou ndwater wellss or extraction
ns from groundwater
wells in the aggregate
a
. . . .”14 and the po
ower, “to auth
horize temporrary and permanent transfers of groundw
water
extraction alllocations with
hin the agencyy’s boundaries . . . .”15
•
Reduced Acccess to Ground
dwater: As a result
r
of allocaating cutbackss in order to b
bring the basin
n into sustainaable
balance, water supplies may be reduced
d, thus necessitating new suupply development to satisffy current and
d/or
projected demands. This concern
c
will be
e particularly pronounced
p
iff, due to water right priorities under the ccommon
law, the burd
den falls predo
ominantly on water
w
purveyo
ors instead of landowners.166
•
Conflict Amo
ong Water Pro
oviders: Water providers oftten develop a nd implementt their own management pllans and
regulations. Designation of
o one agency as the GSA, th
herefore, coul d generate co
onflict among water provideers by
creating inco
onsistent regullations and po
olicies. Therefo
ore, water prooviders that exxtract and deliiver groundwaater should,
in all basins, engage in the
e process of ch
hoosing a local agency to acct as the GSA aand should engage in develo
oping and
implementing a Plan consistent with the
e Act in mediu
um- and high-ppriority basinss designated b
by DWR. Furth
her, once
adopted and validated,17 “a water provid
der may be prrohibited from
m overturning a Plan or any element of th
he Plan that
is inconsisten
nt with the waater provider’ss groundwaterr rights or its eexisting and projected demand requirements.”
•
Increased Exxpense and Re
egulation: Und
der the Act, a GSA is authorrized to imposse fees on all b
basin users, including
other water providers, to fund
f
its activitties.18 For example, the GSA
A may impose new pump feees to fund thee acquisition
of new or supplemental so
ources of supp
ply for replenisshment or in llieu delivery to
o offset groun
ndwater produ
uction.19
Therefore, a water provide
er’s costs of grroundwater prroduction mayy increase. Fo
or investor-ow
wned water utiilities,
approval by the
t California Public Utilities Commission
n will be requirred to incorpo
orate these ad
dditional costs in
approved rattes.20
Decem
mber 2014
Learn more at waterr.bhfs.com
Senate Bill 1168
8 (Pavley), Senate Bill 1319 (Pavley), and Assemb
bly Bill 1739 (Dicckinson).
The Act mandattes compliance for
f all non-exempt groundwater basins designatted by the DWR as medium- and
d high -priority b
basins. (Water
Cod
de § 10720.7(a)(1).) However, th
he Act encouragges low- and veryy low-priority baasins to be manaaged pursuant to
o a Plan as well. (Water Code
§ 100720.7(b).)
3
e § 10723 et seq.
See Water Code
4
Water Code §§ 10721(j), (m), 10
0723(a).
5
See Water Code
e §§ 10727(b)(3)), 10727.6.
6
See Water Code
e § 10720.1(b).
7
See Water Code
e § 10726.8(b).
8
See Water Code
e §§ 10723.2(c), 10723.4, 10727.8.
9
See Water Code
e §§ 10727.8(a), 10723.2(c).
10
See Water Code
e §§ 10721(d), 10727(b)(3), 10727.6, 10733.2, 10733.4.
1
11
See Water Code
e §§ 65352(a)(7)), 65352.5.
12
See Water Code
e § 10726.6.
13
See Water Code
e § 10726.4.
14
See Water Code
e § 10726.4(a)(2
2).
15
See Water Code
e § 10726.4(a)(3
3).
16
See City of Barsstow v. Mojave Water
W
Agency (20
000) 23 Cal.4th 1224, 1240-49.
17
See Water Code
e § 10726.6.
18
See Water Code
e §§ 10725.4(a)((3), 10726.8.
19
See Water Code
e § 10726.4(a)(2
2), (3).
20
The California Public
P
Utilities Co
ommission (CPUC) is responsible
e for ensuring thhat California’s innvestor-owned w
water utilities deeliver
cleaan, safe, and reliiable water to th
heir customers at reasonable rattes. There are 1114 investor-ownned water utilitiees under the CPU
UC’s
jurisdiction providin
ng water service
e to about 16 percent of Californ
nia’s residents.
1
2
Decem
mber 2014
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