Lawmakers are casting a critical eye to the implementation of the Sustainable Groundwater Management Act. Recent bills have sought to elevate environmental justice within the process and to establish a stronger state role in SGMA. As the new legislative session gets underway, more proposals are starting to take shape.
The Assembly held an informational hearing last week to survey the latest developments in the implementation process and to consider ways of reforming the adjudication process for groundwater rights. The calls for overhauling aspects of the state’s water supply system stem from a 2022 report from a cohort of legal scholars who partnered with the Planning and Conservation League, an environmental lobbying group.
Last year Gov. Gavin Newsom signed into law two measures that sprouted from the movement. One dealt with senior water rights and eventually took on amendments that changed it to clarifying—rather than modifying—the water board’s role with investigating those rights.
The other was Assembly Bill 779—crafted by UCLA law students—to require groundwater sustainability agencies (GSAs) to consult with officials from the Department of Water Resources (DWR) or the State Water Resources Control Board when reviewing adjudication agreements between pumpers. It also mandates courts to consider small and disadvantaged farmers in the proceedings.
Yet two other measures by Assemblymember Steve Bennett of Ventura stalled in committee. Similar to AB 779, Bennett sought to require adjudication parties to submit their agreements to DWR before final approval. Water districts, farm groups and business interests opposed both measures, arguing they would disrupt the complex, lengthy and often expensive court proceedings and blur the lines between the judicial and executive branches of government.
Bennett has also made two attempts to pass legislation that would task GSAs with reviewing well permits before county approval. The bills gained pushback over concerns that GSAs already lack the amount of funding necessary to craft and implement complex new SGMA plans.
The Assembly Water, Parks and Wildlife Committee kicked off the debates last year with an informational hearing that provided a platform for the legal scholars and the lawmakers who took up their calls for reform. Despite a changeup in leadership, the committee held a similar hearing last week, as the Legislature starts to delve into more than 2,000 bills.
Yet this time the committee partnered with a budget subcommittee covering climate, resources, energy and transportation. Bennett chairs the subcommittee and led most of the discussion in the hearing.
Prof. Jennifer Harder, McGeorge School of Law“These groundwater agencies have a special responsibility to those people who have the least advantages and the least ability to deal with the impacts of the depletion of our groundwater and the overdrafting,” said Bennett in opening the hearing. “The thousands of domestic wells that go dry, causing farmworkers and low-income people to be disadvantaged, is a particular concern of mine.”
As the state switches to the implementation phase of SGMA, Bennett viewed it as the job of the Legislature over “the next five years or so to make sure that we do whatever tweaks need to be done to make sure that we can handle this enormously important challenge properly.” He also pushed for the water board to take a strong stance in its role as the regulatory backstop for SGMA and hold the GSAs that “drag their feet” accountable for any deficiencies in their plans.
In discussions on SGMA, Bennett often draws on his experience as a city—and later county—supervisor involved in the oversight of local groundwater management. Ventura County was one of the first government entities to aggressively regulate pumping, with ordinances dating back to the early 1980s. He argued the county had failed to balance the aquifer within a 30-year horizon because farmers had not taken the regulatory backstop seriously.
“The average person who's not at the table—the average person that doesn't have the high-priced lawyers to come in and put pressure on you, those farmworkers whose wells are going dry—they absolutely depend upon [the water board] for being the appropriate backstop to really motivate all of the local agencies to get it done,” he told board officials at the hearing.
Critics have sought to counter Bennett’s experience with groundwater management by pointing out that the state has more than 500 groundwater basins and that its diverse hydrology means complex water issues are best managed locally.
Bennett went on to assert that GSAs are beset by significant conflicts of interests, which creates more potential for feet dragging.
“There needs to be a consequence,” he said, before pressuring DWR officials to ensure fees pay for the necessary well metering and that stiff fines are levied for overpumping. “If you starve the GSA for resources, they can't do a good job of monitoring the pumping and monitoring of things that have to be done.”
Bennett also felt the water board should impose fees on GSAs that cover the entire cost of reviewing plans deemed inadequate. Advocates at the Leadership Counsel for Justice & Accountability echoed the sentiment, arguing that GSAs should cover all implementation costs and not use any state dollars.
Bennett then delved into a technical discussion about adjudications with his district’s groundwater management agency as well as a legal scholar from the Planning and Conservation League’s cohort who has spearheaded arguments for reform in the Legislature.
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“Some of the things that tend to get left out [of the adjudication] process are the public interest—looking at environmental impacts, disadvantaged communities, small farmers and sometimes integration with SGMA,” explained Jennifer Harder, a professor in water and environmental law at McGeorge School of Law at the University of the Pacific. “There's a lot of momentum toward a particular physical solution and that's where you get some inequities.”
Harder called for lawmakers to create stronger standards and more funding to support interest groups that intervene in the proceedings on behalf of “those who are not present at the table” and to elevate environmental and social justice concerns as top priorities in the proceedings.
Dave Runsten, CAFFBennett agreed with Harder’s argument that the courts should ensure agreements do not conflict with groundwater sustainability plans. He raised alarms that large pumpers might use the adjudication process to challenge the plans, and that related litigation would divert valuable resources away from SGMA implementation. He hoped the state could provide more resources to low-income communities to appeal adjudication decisions.
Jeff Pratt, executive officer at the Fox Canyon Groundwater Management Agency, confirmed that such litigation had slowed down the implementation process at his agency.
Bennett then paused the discussion to point out that his AB 1563 would require the water board to review all settlement proposals for consistency with SGMA plans and that the Senate may take up the measure later in the session. He also speculated that the state could finance a public defender to represent disadvantaged communities and environmental interests in the proceedings, and that it could grant GSAs a higher standard of legal protection against lawsuits.
The progressive Community Alliance with Family Farmers (CAFF) has often sided with Bennett and others who call for reforming the water rights system. Dave Runsten, the advocacy group’s water policy director, explained at the hearing how CAFF has engaged in the issue outside of the Legislature.
After lawmakers recently appropriated $10 million to help small farmers adapt to SGMA, the alliance persuaded DWR to send $1 million of that to the UC Davis School of Law to fund a water justice clinic for low-income communities and to have a DWR attorney run the program.
“The equity issues are really quite extreme in these adjudications,” said Runsten. “We'll probably be back next year asking for additional funding so that this program can continue.”
During such discussions over revising SGMA, water districts and state agencies often intercede to urge lawmakers to be patient and trust that GSAs are making progress toward achieving sustainability.
“These GSAs are doing a lot of work to correct decades of overdraft,” said Kris Anderson, senior state relations advocate at the Association of California Water Agencies. “That's not a chore that's accomplished overnight.”
He called it critical for the state to continue to give locals the time and resources to implement SGMA.
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