California's Groundwater - New

Demands on Underground Waters California Water Law Symposium

January 30, 2010

Andy Sawyer Kevin O’Brien Dennis O’Connor Chris Frahm

Panelists

Paul Kibel, Moderator

Groundwater Use in California

21%29%

39%

Source: Legislative Analyst’s Office

• Bulletin 118-80 identified 11 critically overdrafted basins

• Bulletin 118, 2003 update: A comprehensive assessment of overdraft in the

State’s groundwater basins has not been conducted since Bulletin 118-80, but it is estimated that overdraft is between 1 million and 2 million acre-feet annually.

Historical overdraft in many basins is evident in hydrographs that show a steady decline in groundwater levels for a number of years.

Other basins may be subject to overdraft in the future if current water management practices are continued.

Bulletin 118

Source: UC Center forHydrologic Monitoring

Surface/Groundwater Interconnections

Source: USEPA

Groundwater

Surface Water

Source: USGS

Source: USGS

Source: USGS

California’s Statutory WaterRights System

• Applies to:– “surface water, and to subterranean streams in

known and definite channels”

Lava Beds National Monument

Source: NPS; photo David Hays

Natural Bridges

Source: USBR

Source: All-Outdoors Whitewater Rafting

Carmel River

• Distinction between subterranean stream and percolating groundwater is based on Los Angeles v. Pomeroy (1899) 124 Cal. 597

• (State Water Board Decision 1639 (1999) at pp. 3-4)

Los Angeles v. Pomeroy

Groundwater

• [F]or groundwater to be classified as a subterranean stream flowing through a known and definite channel, the following physical conditions must exist:

1. A subsurface channel must be present;

2. The channel must have relatively impermeable bed and banks;

3. The course of the channel must be known or capable of being determined by reasonable inference; and

4. Groundwater must be flowing in the channel.

(State Water Board Decision 1639 (1999) at p. 4.)

For groundwater to be classified as a subterranean stream flowing through a known and definite channel, the following physical conditions must exist: 1. A subsurface channel must be present; 2. The channel must have relatively impermeable

bed and banks; 3. The course of the channel must be known or

capable of being determined by reasonable inference; and 4. Groundwater must be flowing in the channel.

State Water Board Decision 1639 (1999)

North Fork Gualala

Source: USGS

North Gualala Water Co. v. State Water Resources Control Board

• North Gualala Water Co. v. State Water Resources Control Board (2006) 139 Cal.App. 4th 1577– Upholds State Water Board’s use of four part

Pomeroy/Garrapata test

– Declines to adopt additional limitations on definition of subterranean stream

North Gualala

“California is the only western state that still treatssurface water and groundwater under separate anddistinct legal regimes. The persistence of these alternative regimes inevitably leads to thorny issuesof classification and boundary setting. As the presentcase illustrates, classification disputes in this field quickly take on an Alice-in-Wonderland quality because the legal categories are (e.g., “ ‘subterranean streams flowing through known and definite channels,’” “percolating water”) are drawn from antiquated case law and bear little or no relationship to hydrologic realities.” (North Gualala, 139 Cal.App.4th at 1590)

North Gualala (cont.)

While ruling that the SWRCB’s interpretation of Section1200 of the Water Code is entitled to only “limited deference,” the court concluded that the record contained substantial evidence supporting the SWRCB determination that the four-part test had been satisfied. The court rejected Company’s arguments that (1) for a channel to be “defined” its width must be narrowing as the groundwater flows through it; (2) the bed and banks of a subterranean channel must be a “significant boundary” rather than “relatively impermeable”; and (3) the groundwater flow direction must more closely follow the course of the channel than was the case in North Gualala.

Key Question: Application ofNorth Gualala in other settings

• North Gualala court explicitly rejected notion that water moving within a wide alluvial valley such as the San Fernando Valley is part of a single subterranean stream.

• But, if the four-part test approved in North Gualala is applied expansively in other contexts, SWRCB jurisdiction over groundwater could be quite extensive.

The Sax Report

SWRCB retained Professor Joseph Sax of the University of California, Berkeley, who rendered a report in January 2002 entitled “Review of the Laws Establishing the SWRCB’S Permitting Authority Over Appropriations of Groundwater Classified as Subterranean Streams and the SWRCB’s Implementation of those Laws.”

The Sax Report (Cont.)

In his report Professor Sax embraced two principal positions (1) that that Water Code § 1200 be read to grant the SWRCB authority over groundwater when the extraction of that groundwater would have an “appreciable and direct impact” on a surface stream; and (2) that the SWRCB possesses and should exercise authority over groundwater, either under the public trust doctrine or under the waste and unreasonable use doctrine, when the extraction of groundwater may have an adverse impact on environmental resources.

To date, SWRCB has not adopted either position.

Professor Sax (pre-North Gualala)

“The central controversy over the scope of ‘subterranean stream’ in the statute centers on whether the Board is likely to take jurisdiction over groundwater pumping in broad alluvial valleys where it has not ordinarily exercised its jurisdiction in the past, rather than taking jurisdiction only over pumping in the near vicinity of surface streams.” (Sax Report to SWRCB dated January 19, 2002, p. 49)

Professor Sax (cont.)

“If the Board were to take the view that a channel must fit the definition of being ‘like a trench, furrow, or groove’ or ‘a tubular passage’ [the standard definition of the term from the American Heritage Dictionary]—that is, something essentially long and narrow—it would doubtless be drawn toward the more restricted view of its jurisdiction that some urge, sticking to the immediate confines of the channels of surface streams. On the other hand, if a channel can be quite broad and un-furrow like, so long as it is enclosed by relatively impermeable beds and banks, subterranean stream jurisdiction could be quite extensive.” (Sax Report, pp. 49-50; emphasis added)

Conclusions

• North Gualala is first appellate decision interpreting Water Code § 1200.

• While North Gualala provides some useful guidance, uncertainty exists as to how the four-part test will be applied in other settings.

• Query whether the “impacts” test suggested by Professor Sax will rise like a phoenix from the ashes in some future legislative context.

Sacramento’s Traditional Approach to Water Policy