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Basics: Rights to Groundwater

Courtney A. Davis, Esq. Allen Matkins (Sacramento Location)

Groundwater vs. Subterranean Stream• Percolating groundwater is not subject to State

Water Board jurisdiction but is subject to constitutional mandate of reasonable and beneficial use (Art. X, § 2)– Groundwater is assumed to be percolating

• A subterranean stream – underground water flowing in “known and definite channel” – is considered surface water and subject to State Water Board regulation

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Types of Groundwater RightsThree basic types of rights:

• Overlying

• Appropriative

• Prescriptive

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Overlying Rights• Arise solely from ownership of the land overlying the

basin and are part and parcel of the land (appurtenant)

• Correlative

• Not quantified (absent an adjudication of rights)

• Generally do not depend upon use and are not lost by nonuse

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Appropriative Rights

• Attach to use of water on non-overlying lands

• Requires actual taking and use of water to develop right

• Measured by the quantity taken and applied to beneficial use

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Prescription

• May only be developed once a basin has been in “overdraft” for five years or more

• Acquired by an adverse taking of water to which someone else has an existing prior right – actual, open, notorious, adverse, exclusive and

continuous for a five year period

• Cannot accrue against a public water supplier’s appropriative rights

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Groundwater Right Priorities• All overlying rights are of equal priority

(“correlative”)

• Overlying rights are superior to appropriative rights

• Priority of appropriative rights governed by when the right is initiated (“first in time, first in right”)

• Prescriptors may obtain superior rights to overlying owners and appropriators

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Historic State and Local Groundwater Regulation•By local water agencies

•By special act groundwater management agencies

•Under AB 3030 plans

•By local groundwater management ordinances

•Under groundwater adjudications– AB 1390

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Sustainable Groundwater Management Act of 2014

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SGMA Background & Basics• Enacted in September 2014

• SB 1168 & SB 1319 (Pavley); AB 1739 (Dickinson)

• Brought about by drought, statewide attention to wells running dry and subsidence, majors groups advocating for legislation, pressure for change

• Most significant change in groundwater management and regulation in last 100 years

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SGMA Overview• Groundwater to be regulated locally, at the basin

level, by Groundwater Sustainability Agencies (GSAs)

• Basin boundaries for GSAs based on DWR Bulletin 118, but subject to revision upon request filed with DWR

• Basins are categorized as high-, medium-, low- or very low-priority

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SGMA Overview (cont’d) 12

Source: DWR

SGMA Overview (cont’d)• By June 30, 2017, GSAs must be identified and

file with DWR to cover each high and medium priority basin

• By January 31, 2020, critically overdrafted basins must develop and file a Groundwater Sustainability Plan (GSP) and the Plan must provide for achieving the “sustainability goal” within 20 years

• By January 31, 2022, for basins not in critical overdraft

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SGMA Overview (cont’d)• For medium- and high-priority basins, GSAs must

develop a Groundwater Sustainability Plan (GSP)

• Basic components of a GSP are similar to an existing Groundwater Management Plan (AB 3030 plan)

• Other GSA powers include: requiring measurement and reporting of extractions; regulating extractions; and imposing fees and assessments to fund groundwater management

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SGMA Overview (cont’d)

• If SGMA deadlines are not met for a particular basin, the basin is deemed “probationary” and the State steps in and develops an “interim plan” under which it manages the basin indefinitely

• SGMA does not change water rights or priorities and any prescriptive claims are tolled from 1/1/15 until a GSP is adopted

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Recent Legislative Developments•In 2015, several SGMA amendments enacted

•SB 13– Made clarifying changes to SGMA– Authorizes mutual water companies or water

corporations regulated by CPUC to participate in a GSA

– Requires local agencies seeking to become GSA to hold a public hearing

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Recent Legislative Developments (cont’d)• AB 1390 authorizes new, streamlined procedures for

groundwater adjudications

• SB 226 – Groundwater adjudications under AB 1390 must be

managed to minimize interference with implementation of GSPs and to permit attainment of sustainable groundwater management by SGMA deadlines

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Recent Legislative Developments (cont’d)• AB 617

– Authorizes GSPs to enter into written agreements and funding arrangements with private parties to assist in, or facilitate the implementation of, groundwater sustainability plans

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Status of SGMA Implementation

• To date, 111 notices of GSA formation have been filed

• In November 2015, DWR released the regulations for seeking modification of basin boundaries (early!)

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