With California in one of its worst droughts in recorded history, cuts have fallen swiftly on users of surface water, but the effects on groundwater will percolate more slowly.

Unlike surface water sources, including deltas, rivers, lakes, and basins, groundwater has remained largely unregulated in the state, even though it accounts for about a third of California's total water supply. That will begin to change soon under the Sustainable Groundwater Management Act, signed into law this past September by Gov. Jerry Brown.

It will take effect mainly through the action of new groundwater sustainability agencies (GSAs), according to water attorney Eric L. Garner, managing partner of Best Best & Krieger, LLP.
   
Garner was the keynote speaker Dec. 4 at the Association of California Water Agencies (ACWA) fall conference in San Diego. The conference gathered experts and practitioners to discuss California water policy as affected by this year's drought pressures.

Garner said the new GSAs will be able to do what courts do now, by imposing fees and monitoring subsidence of land. Importantly, he said they will also be able to monitor the amount of water that owners extract from the ground. Though owners have certain rights to the water underneath the land they own – known as overlying rights – the agencies could tell owners to stop pumping water out of the ground if the supply is depleted faster than it is replenished.

He said that's a big change from the way groundwater monitoring happens now: "You pump until a judge tells you not to, and that is the law of California groundwater [today]."

Nevertheless, Garner said the legislation allows districts ample time to form these agencies. "There's a timeline, and I think a pretty generous timeline…to sort of get our collective acts together and do something."

While the law takes effect on January 1, 2015, it gives districts until 2017 to form the GSAs. Then, depending on how "critically overdrafted" a basin is, each GSA has until 2020 or 2022 to implement a Groundwater Sustainability Plan (GSP), which reports the amount of groundwater being used, levels of subsidence, and identifies areas to replenish the groundwater supply.

Districts then will have 20 more years to get their groundwater use to "sustainable yields," meaning the point where the supply taken out nearly equals the amount brought back in, and does not have adverse consequences for the environment.

Among other things, Garner said the biggest risks to the groundwater supply in the coming years will be California's rapidly growing population and seawater intrusion, which can ruin existing supplies of groundwater in coastal areas.

Some districts have already begun implementing changes that will be mandated by the SGMA. At a separate panel during the conference, Mark Larsen, the general manager of the Kaweah Delta Water Conservation District, said his "severely" overdrafted basin in Sequoia National Park has begun placing recharging basins to replenish the groundwater supply throughout the district. To date, the Kaweah district has installed 11 basins to recharge the supply of groundwater in the district.

SWRCB counsel faces ag water lawyers' ire

Responding to unprecedented drought conditions during the past four years, state officials had to change the rules of the game in enforcing mandates to curb water usage throughout the state.

In California's complicated, history-rich water rights world, no big change happens without a fight. Michael Lauffer, the chief counsel of the State Water Resources Control Board, faced that head-on at an ACWA panel full of indignant water lawyers. The lawyers lambasted the state's response to the drought as "draconian," and as harmful to due process rights.

The lawyers' anger focused on the water board's May 2014 emergency water measures, which allow the board to impose fines of up to $1,000 per day for violations of curtailment orders. They noted state law formerly required there be two straight dry years for the board to adopt emergency regulations, and despite the year 2013 being the driest in recorded history for California, 2012 got enough rainfall that it didn't fit the category. So the orders were authorized by the Governor's April 25 executive order allowing the board to adopt emergency regulations.

The lawyers complained that the emergency measures limit due process rights as well as water flows: they allow the board to fine violators of curtailment orders directly, without a hearing, whereas under ordinary curtailment orders, the board would have to issue cease-and-desist notices, and then conduct an evidentiary hearing to assess guilt.

Lauffer said the usual hearing process would be too time-consuming, and that the board lacked resources to carry that out on an individual, case-by-case basis.

Instead of issuing individual curtailment orders for each owner of water rights, the state compiles data for the watersheds and issues curtailment notices based on the amount of demand in a particular stream. Through this process, Lauffer said the state is able to broadly enforce the requirements in a "particularly dire situation." He admitted that some due process was foregone, but argued the measures were necessary as California heads into its fourth year of drought.
   
On the contrary, Jeanne Zolezzi, a lawyer with the firm of Herum, Crabtree & Brown who represents senior water rights holders, said the cuts should have been individualized, not applied across the board.

"Water rights have very specific rules," she said. "They're property rights; they're protected. And we need to follow those rules, they've worked for over 150 years in California, and we don't need to reinvent the wheel."

Zolezzi said many junior water users were being forced to cut water use under the new procedures even when that use didn't affect holders of more senior rights. She said, "The only difference provided by the emergency regulations was that the state board has an easier job of enforcement…It's more efficient and effective, because inconvenient things like evidentiary hearings and due process are dispensed with."

Tom Birmingham, general manager of the Westlands Water District, which does not hold senior rights, agreed, saying "some type of opportunity to be heard before you are punished is critically important."

Zolezzi lamented that her clients have found themselves in opposition to rights holders in areas like Birmingham's.

She said, "I think you know that if any other industry in California were brought to its knees the way that agriculture has been in the past two years, laid off the number of people that they have laid off in California, the state would step in and do something about it. They wouldn't allow that industry to go under.  We have been...forced to fight one another for this water. No other industry would ever be required to do that."

Matt Hose is a reporting intern with the Voice of San Diego.