The Public Trust Doctrine is seeping to California’s aquifers, bringing something like conjunctive surface water and groundwater management to the state. Conjunctive management is a legal approach to managing surface water and groundwater as an interconnected resource. Often states separate the regulation of groundwater from surface water. Conjunctive management attempts to reconnect the regulation of surface water and groundwater to better match real-world hydrological effects.

            Groundwater often supplies water to rivers, called “baseflow” within a “gaining reach,” and pumping can reduce groundwater’s contribution to surface streams. (See https://water.usgs.gov/edu/rivers-contain-groundwater.html). Likewise, surface water recharges aquifers in “losing reaches.” Regulating surface water and groundwater together is a relatively new development in water law, as legal systems catch up to modern scientific understanding. California has never adopted a groundwater code, let alone explicitly adopt conjunctive management.

            The passage of California’s Sustainable Groundwater Management Act in 2014 ushered in new planning and review scheme for groundwater use and management in the State. (https://www.water-law.com/groundwater-sustainability-plan-regulations/ ). The legislation attempts to prevent “undesirable effects” of groundwater overconsumption and bring groundwater use into a sustainable pattern. Cal. Water Code § 10721(x)(1)-(6).

            Regulation of surface water in California has been affected by the Public Trust Doctrine. Nat’l Audubon Soc’y v. Superior Court explicitly recognized that the Public Trust Doctrine would supplement statutes governing surface water. 33 Cal. 3d 419 (1983) (“Audubon”). (The Public Trust Doctrine is a well-established principle in California that the State hold certain resources in trust for the benefit of the public, and must take these principles into account when making natural resource decisions.) The case dealt with diversions from non-navigable streams flowing into Mono Lake that is “navigable” under state law. The Court found support for the application of the Public Trust Doctrine to non-navigable tributaries in previous cases like Audubon, showing that the doctrine can reach upstream to prevent harms to downstream navigable streams and lakes.

            In the recent decision Environmental Law Foundation v. State Water Resources Control Board, California’s Third District Court of Appeals held that the Public Trust Doctrine can apply to groundwater that is hydraulically connected to navigable surface waters, like a “tributary” to the surface stream. 237 Cal. Rptr. 3d 393 (2018) (“Control Board”). (Interestingly, this application of the Public Trust Doctrine implicitly favors surface water over groundwater sources, since the reasoning does not support finding surface water as “tributary” to groundwater sources).

            Until Control Board, the courts did not apply the Public Trust Doctrine to groundwater, likely on the basis that aquifers are non-navigable. The court, using the reasoning found in Audubon, found groundwater extraction in the region near the Scott River would reduce surface flows and harm public trust interests in the navigable river. In effect, the Public Trust Doctrine would extend to any groundwater source that provides water, or has stopped providing water, to a navigable surface water body.

            This follows a trend in applying surface water laws and regulations to groundwater. In Hawaii Wildlife Fund. v. County of Maui, the Ninth Circuit decided that discharges into groundwater could be regulated by the Clean Water Act. 881 F.3d 754 (9th Cir. 2018). Typically, the Clean Water Act does not apply to groundwater. See 80 Fed. Reg. 37054, 37099 (June 29, 2015). But since the aquifer was hydraulically connected to the Pacific Ocean, the aquifer was a “conduit” transporting pollutants to the sea. For more information, see: https://www.water-law.com/ninth-circuit-upholds-groundwater-conduit-theory/. Like the Public Trust Doctrine in Audubon, the Clean Water Act has begun to seep into aquifers as courts attempt to wrestle with modern hydrogeological science.

            Will these rules seep into aquifer pore spaces as well? As discussed in previous blog posts, California courts are currently deciding if aquifer pore spaces are public or private property. (See https://www.water-law.com/who-owns-an-aquifer/). The Control Board decision adds another layer to the aquifer questions in California: Is there a public trust aspect to aquifer pore spaces that potentially hold (or held) groundwater? Or does the doctrine remain confined to the groundwater alone? Keeping the doctrine out of the pore spaces would be difficult, as aquifers are complex systems of transresources. (Transresource systems are interconnected, yet distinct, resources in a dynamic relationship, see https://www.water-law.com/new-associate-attorney-jakob-wiley-defends-collective-aquifer-governance-agreements/.) Scientifically, aquifers and groundwater are in a constant dynamic relationship. The legal question remains open whether aquifer pore spaces are public, like water, or private, like the land and geological materials that make up aquifers.

            As the Public Trust Doctrine sinks into the aquifer, California courts and agencies may face pressure to implement “backdoor conjunctive management” through litigation and planning for Groundwater Sustainability Plans related to the Public Trust Doctrine. Groundwater Sustainability Agencies in California will likely have to take the Public Trust Doctrine into account as they develop and review Groundwater Sustainability Plans and make land use decisions for groundwater development. (See https://californiawaterblog.com/2018/10/07/the-public-trust-and-sgma/ ). While never adopting a groundwater code or conjunctive management regulations, California may then begin to regulate surface water and groundwater as a connected resource.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

On October 23, 2018, President Trump signed America’s Water Infrastructure Act (“AWIA”), also known as the Water Resource Development Act, into law. This bipartisan bill, which previously passed the House of Representatives on September 13, 2018 and the Senate on October 10, 2018, aims to improve dams, levees, ports, and waterways throughout the United States. It also amends the Safe Water Drinking and allocates funds toward more efficient and sustainable water quality control and management, particularly in underserved communities.

As its name might suggest, one of AWIA’s main goals is to improve America’s water systems. Under AWIA, the U.S. Army Corps of Engineers will receive around $3.7 billion to plan, study, and develop water projects to alleviate strain on existing infrastructure. In the Northwest, the Port of Seattle is specifically slated to undergo construction to improve navigation channels, as are several other key ports around the United States. AWIA also has specific provisions that focus on flood protection measures on the Snake River and levee improvements in Clatsop County, Oregon, among others.

One of the most notable aspects of AWIA is how it addresses the ongoing water shortages in Northern California/Southern Oregon’s Klamath Basin. AWIA provides a much-needed $10 million annuity to the Bureau of Reclamation to address ongoing water issues in the Klamath Basin, and provides avenues for farmers to make use of Klamath Project canals to deliver water to their farms. AWIA also focuses on increasing efficiency and sustainability of hydropower and delivery of affordable electricity to those same farmers.

Stay tuned to Schroeder Law Offices’ blog for more updates on AWIA’s progress and impacts on water in the Northwest and the United States!

Incoming J.D. Paralegal (Attorney upon Bar passage) Jakob Wiley attended the University of California Cooperative Extension’s regular Rice Production Workshop held at Lundberg Family Farms in Richvale, California. The seminar was attended by farmers, local businesses, and water district personnel, providing a broad overview of rice production and the challenges faced by producers.

Water in rice production isn’t just about irrigation. Water serves a critical role in temperature regulation, weed control, and field management. For example, water is used to prevent excessive cooling of the rice flowers, which inhibits pollination. Exposure of the flower to cool temperatures can “blank” the rice (prevent the grain of rice from forming) and reduce yields. Water also acts as a blanket, keeping the flowers warm during cool nights. Careful management of water also ensures the safe use of pesticides and herbicides (and avoids costly fines). Water plays a critical role in the growth, development, and success of a rice field.

More information about rice production can be found in the 2018 Rice Production Workshop Manual available at http://rice.ucanr.edu/Reports-Publications/Rice_Production_Workshop_Manual/.

Jakob will add his new knowledge about rice production to his background in cattle ranching and alfalfa production to better assist with your water needs!

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news that may affect you!

Authored by: Valley Urricelqui

Reno Office summer intern, Valley Urricelqui is a Beef Ambassador. A “Beef Ambassador” promotes and helps shine a brighter light on the Beef Industry. A Beef Ambassador is a knowledgeable public figure of the Beef Industry that informs the public of the health benefits of beef as well as helps to gain support throughout the community.

In California, the Beef Ambassador program invites those across the state of California to compete and showcase their knowledge as an advocate for the beef industry for the coming year. Valley earned her place at the state competition as the 2018-2019 Shasta County Beef Ambassador. Contestants competed in four main events, including a mock interview, mock consumer demonstration, issue response and social media presence. These categories aim to evaluate contestants’ overall knowledge of the beef industry, agricultural issues, marketing, education and animal welfare.

In April 2018, Valley received the title of California State Beef Ambassador representing the North State. In this position she represents the State of California as a voice for the Beef Industry and is helping to spread positivity about the agriculture industry as a whole in efforts to gain more support from the public. Her goal is to present in elementary classrooms to educate our youth about where their food comes from, the hard work and processes necessary for raising livestock and producing food supplies, and the nutritional health benefits our food provides. Making the “farm-to-fork” connection is an important mission for Valley. Being named California Beef Ambassador has been a goal for Valley from a young age, and she aims to educate people within and outside of the agricultural industry.

As a California Beef Ambassador, Valley hopes to serve as a pillar for educating consumers. As a fifth-generation cattle rancher in Northeastern California, her roots run deep. “I want people to understand that you don’t have to have an agricultural background to support agriculture,” she said. “We are a dying breed and it’s more important now than ever for people to understand where their food comes from and that it is safe, wholesome and nutritious.”

As California Beef Ambassador, Valley will travel across the state to represent the beef industry in order to educate people on the nutritional, economic, and environmental benefits of beef. Valley will also take her knowledge and enthusiasm into the classroom and educate youth on the importance of the livestock industry. Her goal is to shine a brighter light on the beef industry.

Already this year Valley has attended the Mid-Year Cattleman’s meeting held in Redding CA, as well as some local county fairs spreading the good word about the beef industry and how to better promote the industry. At the Mid-Year meeting she presented to Cattlewomen on Social Media and how it can be used to promote ranching and farming operations as well as the agriculture industry as a whole. She shared examples as to how we can positively promote agriculture by using hashtags in posts. Valley taught ways for accessing online information more easily.

Today’s youth access social media more than any other age group, with more than 98% using social media on a daily basis. About 30% spend more than six hours a week on social media websites and apps. With these stats being so high it tells the agriculturalists that using social media to spread positive agriculture views is a must!

During her time as Beef Ambassador, Valley wants to attend as many events across the state as possible, and continue to present on matters related to the beef community and the agriculture industry. After this year, Valley plans to run for the National Beef Ambassador Team. If lucky enough to join this team, she will continue to promote the agriculture industry in a positive light across the Nation.

In February 2017, the town of Oroville, California was in for quite the surprise! Butte County Sherriff’s Office issued a mandatory evacuation notice as the full reservoir (Oroville Lake) above Oroville threatened to wash out residents. The reservoir’s dam spillways were severely damaged by increased water flow caused by the seemingly unceasing rains. Now the question is when will it be fixed, and what happens next?

Many residents have noticed the hustle and bustle of workers and heavy machinery at the Oroville Dam and are wondering what is actually going on.  Rumors abound. According to the San Francisco Chronicle, some say the work must be a secret effort to mine undiscovered gold, or some suspect a missile is taking shape…not a new spillway. Regardless of what the rumor mill might be stirring, one question is on everyone’s mind – Will it be done in time for the winter and spring rains in 2018?

Officials say that they want the spillways to be operational by November 1^st, 2017 in case the lake fills up by then. Final touches, on the other hand, will have to wait until next summer. Some residents fear that the work is only a patch job and not a permanent fix, and skeptics are not going to wait around to be proven right or wrong.

One thing is for sure, the California Department of Water Resources is required to make sure that the dam is safe before it is fully operational. Arguably, residents should receive assurance of that the dam is safe before the 2018 rains hit and the lake fills up.

In the meantime, assignment of blame for the 2017 disaster continues. State officials are investigating the spillways and looking into the possibility that poor management is to blame for their damage. One official says that he expects the team’s findings to have implications for other dams in California, and beyond.

California Water Right Ownership Updates Required

The State of California wants to know when you sell or transfer water rights. As part of any land use transaction involving water rights, regulations require landowners to provide notice to the Water Resources Control Board (WRCB) when water rights transfer to new owners.

The WRCB will accept any change of ownership unless the change is challenged. If so, the WRCB will wait to update ownership listings until the dispute is settled outside of the agency.

Notification to WRCB should include information like the application number for the water right, name, and address of the new owner. The notice must also be signed by the previous owner. The process is easy. Forms are available at: http://www.waterboards.ca.gov/water_issues/programs/ewrims/ownership/. The forms may be sent electronically, by mail, or fax. Questions regarding the forms may be sent to: changerequest@waterboards.ca.gov.

For other states’ recording procedures and requirements, see: http://www.water-law.com/water-rights-articles/water-right-assignment-and-ownership/.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.

California’s Sustainable Groundwater Management Act Regulations Issued

California’s Sustainable Groundwater Management Act (“SGMA”) was passed in 2014. The SGMA requires local agencies to bear the burden of creating, implementing, and enforcing Groundwater Sustainability Plans (“GSP”) in certain groundwater basins to manage the aquifer in a “sustainable” manner. The California Department of Water Resources (“CDWR”) recently issued regulations that help clarify the requirements of the GSPs, but also include some information about how the law will impact local agencies and groundwater users in the State. However, the regulations fail to satisfy some fundamental questions raised by the SGMA.

The new regulations were issued on May 18, 2016 by CDWR provide some insights into how the agency plans to implement the Sustainable Groundwater Management Act. A copy of the regulations may be found at: http://water.ca.gov/groundwater/sgm/pdfs/Proposed_GSP_Regs_2016_05_10.pdf. Under the regulations, the agency set out the requirements for plan contents, including administrative information, a description of the basin, sustainable management criteria, a description of the monitoring network, and projects associated with the plans.

The administrative information section must include general information about the region, description of the local agency developing the plan, and the agency decision-making process with public engagement.

The basin setting section must thoroughly describe the basin’s hydro-geologic conditions and must create a “water budget” that describes all the surface and groundwater movement into and out of the basin. Under this section, the local agency must estimate the “sustainable yield” of the basin.

Sustainable Management Criteria have also been outlined by the regulations. These criteria require local agencies to set a sustainability goal that eliminates undesirable results of groundwater use within 20 years of the statutory deadline. CDWR will evaluate sustainability goals based on the achievement of minimum thresholds established by the local agency. The minimum thresholds expand on the statutory language for “undesirable results.” For example, a significant and unreasonable reduction in groundwater storage levels will be evaluated based on the locally defined “undesirable results,” supported by the “sustainable yield” of the basin. The local agency must also include a measuring system and “measurable objectives” that are revisited every five years.

The regulation also outlines the procedure that CDWR will use to evaluate plans, timelines for approval and reporting, and how local agencies can amend their plans. It also sets out the procedure for interagency agreements and addresses adjudications and alternatives to GSPs.

The real impact will come from the local agencies’ interpretation of the word “sustainable.” The new regulations use the term throughout, defining the quantity of water in the water budget available and defining allowable groundwater depletions. Traditionally, sustainable yield is considered the amount of water that can be withdrawn in balance with recharge. At first glance, the definition makes sense. The meaning, however, simplifies a more complex concept. When water is pumped from an aquifer, three results can occur: a reduction in stored water stored in the aquifer, capture of surface water (like rain or seepage from a river), or a reduction in discharge (like a spring or river baseflow), or any of these effects in combination depending on the specific aquifer. Ponce, Victor M., Sustainable Yield of Groundwater, (available at: http://ponce.sdsu.edu/groundwater_sustainable_yield.html). It remains to be seen how “unreasonable” and how “significant” the undesirable effects have to be in order to become unsustainable.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.

On May 9, 2016, Governor Jerry Brown of California signed an executive order making certain water conservation measures permanent. The measure is meant to build on temporary emergency water restriction in place since last year. Brown’s office reports that “between June 2015 and March 2016, Californians reduced water use by 23.9 percent compared with the same months in 2013 – saving enough water to provide 6.5 million Californians with water for one year.”

The executive order primarily implements long term planning solutions for local drought and directs the California State Water Resources Control Board to develop further emergency provisions should the drought continue. This new action is summarized in the Governor’s plan to “Make Conservation a California Way of Life.”

More specifically, the plan requires additional monthly reporting by urban water suppliers, requiring information on use, conservation, and enforcement. The provisions further claim to eliminate water waste, prohibiting hosing off sidewalks, driveways, at home washing of autos using hoses not equipped with nozzles, and watering lawns in manner that causes runoff.  The Water Board will also work to minimize system leaks responsible for wasting more than 700,000 acre-feet of water per year. While already strictly regulated, agriculture use is also heavily considered, updating the requirements for Agricultural Management Plans allowing irrigation districts to quantify customers’ use and appropriately plan for shortages.

While water restrictions and regulations are becoming more permanent, Californians will continue to face heavier scrutiny. It is ultimately the user who will face the increased burden, however, the hope is that the systems themselves will promote efficiency, providing a better use of water across all systems and types of use.

For more information on the executive order and its full text, please visit https://www.gov.ca.gov/news.php?id=19408.

California Governor Brown signed Senate Bill 88 into law on June 24, 2015. Part of that Bill amended the California Water Code to require that all persons who divert 10 acre-feet or more of water per year after January 1, 2016 must install a water measuring device to measure the rate of diversion (including diversion into and out of storage). Water users must report installation to the Water Board, as well as provide evidence that the measuring device is functioning properly at five-year intervals. Water users must maintain records of diversion at time intervals of one hour or less (in some cases) and total amounts of water diverted.

Annual diversion reports must be submitted to the Water Board, and the law states: “Compliance with the applicable requirements of this section is a condition of every registration, permit, or license.” The new law imposes civil fines in an amount not to exceed $500 per violation, per day, which may be enforced civilly through the superior court, or administratively by the Water Board. The Water Board will provide forms for reporting.

On January 19, 2016, the Water Board adopted emergency regulations to implement the new water measuring law. Those regulations were sent to the Office of Administrative Law for approval. Of note, the proposed regulations give the Deputy Director of the Division of Water Rights the authority to require monthly, daily, or more frequent reporting in times when there are insufficient flows to support all diversions. Additionally, the regulations propose a phased approach that takes into account the amount of water diverted, with larger diverters needing to comply with more stringent requirements than smaller diverters.

The recent drought spurred California law makers to enact this law that will mark a drastic change in the way water users operate. The Water Board reports that this new measurement, recordkeeping, and reporting law will apply to approximately 12,000 water users in California. The Water Board hopes that the new law and regulations will improve water use regulation and planning. Industry groups, including the California Cattlemen’s Association, oppose the regulations.

In Oregon, the Water Resources Department has phased in water use measuring, recordkeeping, and reporting requirements into new water use permits that are issued. California’s new law and regulations impose a new condition on existing water use rights, raising red flags about regulatory takings.

For access to S.B. 88 and the draft administrative rules, visit: http://www.waterboards.ca.gov/waterrights/water_issues/programs/measurement_regulation/.

Stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!