Sustainable Groundwater Management ProgramEmerging Legal IssuesUrban Water InstituteFebruary 9, 2017 David Aladjem Downey Brand LLP firstname.lastname@example.org
Introduction • SGMA represents a sea change in groundwater management • SGMA requires local agencies to cooperate in new ways • SGMA also requires DWR to engage in peer review of plans • All of these are hard – but necessary for California's future
Two Emerging Legal Issues • GSA Formation • Adequacy of Alternative Plans
GSA Formation – The Problem of a Common Resource • "Can't we just get along?" • Shared groundwater basins = common law shared resource • Overlying rights • Proportional reductions • Mutual prescription • Tragedy of the commons • Common pool resources (Elinor Ostrom)
GSA Formation – Institutional and Legal Barriers • SGMA protects institutional boundaries • SGMA protects water rights • SGMA wants a single plan for a basin • E pluribus unum – "out of many, one" • Easier said than done
The Overlap Issues • "No man can serve two masters" • Competing plans are a recipe for disaster • Possible solutions • Limit each GSA to non-overlapping areas – but then create more "white areas" • Form a GSA to cover a whole basin • Enter into an MOU that specifies how each overlap area will be managed • Allow counties to cover overlap areas
The Overlap Issue – cont. • Most common solutions • Form a new GSA that includes all parties • Coordinate efforts at a single GSP through an MOU that resolves overlaps • Focus on practicality – what will meet the June 30, 2017 deadline?
The Alternative Plan Issues • Functional Equivalency • CEQA • DWR Review
The Alternative Plan Issues • The "functional equivalency" standard • Technical considerations – does it really meet the GSP requirements? • Legal considerations – does it really mean that the basin is sustainable? • Process considerations – has there really been public input? • DWR's review will establish the standard for GSP's • Will it be "sustainable evidence? • Will it be "preponderance of the evidence?"
CEQA Compliance • CEQA does not apply to GSPs • CEQA does not apply to adjudications • Does CEQA apply to an Alternative that merely recites what has been done (either GWMP or 10-years of data)? • But, what if the allegation is that the Alternative is inadequate? • Is an Alternative simply a preliminary plan or could it be documentation of past activities?
DWR Review • Technical review (see above) • Public comments and review • What if public controversy? • Relationship between DWR and SWRCB review • What if an Alternative is found to be inadequate? • What about judicial review?
Conclusion • Lots of legal/political unknowns, both for GSA formation and Alternatives • There will be more clarity by the end of 2017 • Setting the stage for the meat of SGMA in 2018+ • Allocation of extraction rights • Institutional collaboration/competition • Funding – or its lack – will drive decisions
The great water lawyer Rudyard Kipling summed up SGMA: "If you can keep your head when all about you Are losing theirs and blaming it on you."
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