Interpretation of the New Water Laws in California

It Is a Good Time to Be a Water Lawyer

The groundwater legislation passed last year says repeatedly that nothing in the law would change existing groundwater rights.

I wondered how that would work since the whole point of the legislation is to reduce our current over pumping of groundwater.

How do you do that unless you tell some schmo who's been merrily, and legally, pumping up as much groundwater as he wants, to knock it off? (In other words, reduce that person's "right.")

The legislation may say it's not affecting anyone's rights, but there's a whole lotta' green, as they say in pool, between what's on paper in Sacramento and how it works on the ground.

So, I thought I should get a basic understanding of how groundwater rights worked before the legislation.

Summary: Any way a court said they did.

There is a ground water rights structure, sort of, with three basic types, overlying, appropriative and prescriptive.

Overlying means you own the land. Appropriative means you don't own the land and use the water elsewhere. Prescriptive means you don't own the land, but have been pumping the water for a certain amount of time and no one has complained, so you have a "right " to it.

I hesitate to explain those rights any further, though, because they only seem to matter when one party takes another to court and courts have decided groundwater rights every which way.

For example, an overlying right typically has priority over an appropriative right, unless that appropriative right has become prescriptive. Ugh.

None of those rights trump the other in a reliably consistent way.

The only consistent aspect of groundwater law is that the use of the water has to be "reasonable and beneficial."

Who decides that? The courts. And, as I said, case law seems to fit individual circumstance.

"Probably more than any other body of natural resource law, groundwater law is often honored more in the breach than in the compliance," wrote water attorney Gary Sawyers in a primer on California water law.

I asked Sawyers how the heck the new groundwater legislation would fit into this bag of worms.

"There's no doubt this is going to be complicated," he said.

Sawyers was recently hired by the Kern County Groundwater Authority to act as its counsel as the authority hacks its way through the new legislation to create a path toward a "groundwater sustainability plan," which is due to the state in five years.

He didn't see the new legislation as changing or taking away rights, however.

"I may own real property, but I can't build a liquor store across from a grammar school," he said. "My rights still exist, but they're being restricted."

He understood how that may sound like so much semantics to a farmer who's been pumping as much as he needs and is suddenly faced with volume restrictions.

If a groundwater sustainability agency did impose pumping limitations, though, it would have to make a determination on "reasonable and beneficial use," said water attorney Eric Garner, who gives workshops on California groundwater rights and the new legislation.

Once reasonable and beneficial use comes into play, that's subject to judicial review, he said.

"The new legislation gives groundwater sustainability agencies a lot of tools to manage individual basins that the court also had, but it doesn't give the agencies authority to determine water rights," Garner said.

Both Garner and Sawyers thought the new law, while not perfect, was a necessary step.

"The biggest thing missing in groundwater is we don't know who's taking how much. We don't even know where to start," Garner said. "If all that happened was we gathered information on who's taking how much, and I realize even that is sensitive, that's a huge step forward."

Sawyers said this law is no different from California's first moves to regulate water.

"When the groundwater legislation was passed last year, it was 100 years, exactly, since legislation was created to regulate surface water (in 1914)," he said. "No doubt, folks back then, who diverted water after nailing a notice to a tree as a form of perfecting their right, felt severely regulated."

So far, no one has sued the state over the legislation. But both Garner and Sawyers predicted lawsuits will pop up.

No doubt.

I went to a meeting last week of the "safe yield" committee of the Kern Groundwater Authority.

Safe yield tells pumpers how much water can be extracted each year based on how much is expected to go back into the aquifer from a variety of sources. Safe yield is critical to creating a sustainability plan.

Source: The Bakersfield Californian

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