Land Use Development: New Groundwater Laws Impact Land Use and Development

September 29, 2014

On September 16, 2014, California enacted the first comprehensive program for managing and regulating groundwater extraction and use in its history (AB 1739 (Dickinson), SB 1168 (Pavley) and SB 1319 (Pavley).) The policies and regulations set in motion by the new laws will impact existing land uses, as well as the environmental review, permitting, and implementation of development projects throughout the State.

Groundwater accounts for about a third of all water used in California in an average year, and more than half in a drought year when surface water supplies are unavailable. Some communities are totally reliant on groundwater. The current drought is so severe that it has exhausted usable surface water supplies.  Water users have turned to groundwater supplies to make up for the surface water shortfall. In some areas, groundwater resources are now depleted beyond reasonable expectations of timely recovery, if at all.

In response, the new laws establish a State policy requiring all groundwater resources to be managed “sustainably”. They also establish a new Sustainable Groundwater Management Act. The Act requires each of the groundwater basins that the California Department of Water Resources (DWR) classifies as High or Medium priority outside of court-adjudicated basin areas to have a local groundwater sustainability agency designated by 2017, and a groundwater sustainability plan in place by either 2020 (for critically overdrafted basins) or by 2022 (for the other High and Medium priority basins). Well owners and project proponents can find out whether their area is within the boundary of a High or Medium priority basin targeted for regulation under the Act with the easy-to-use interactive map application at the DWR Groundwater Information Center web site (http://www.water.ca.gov/groundwater/).

DWR is to adopt regulations that local groundwater sustainability agencies must follow in preparing groundwater sustainability plans. Any local public agency having water supply, water management or land use responsibilities within a basin (such as public water suppliers, flood control districts, cities and counties) may elect to be the basin’s groundwater sustainability agency. The Act gives groundwater sustainability agencies broad authority to regulate the extraction and use of groundwater supplies under their groundwater sustainability plans.

The following changes can be expected to result from the new laws.

Land Use Permitting and Environmental Review. Under long-established laws, cities and counties must analyze whether there are adequate water supplies to serve proposed development projects as part of the environmental impact review and entitlement process. Under the new Act, by June 1, 2016, DWR is to adopt regulations identifying baseline assumptions for hydrology, water demand, and regulatory restrictions affecting water supplies that local agencies must use in preparing groundwater sustainability plans. DWR’s regulations can also be expected to be applied as part of a development project’s environmental review process and water supply assessment. They may also lead to broader assumptions about the interconnectedness of surface water and groundwater, and greater restrictions on groundwater pumping to avoid adverse impacts to surface water-dependent resources under State and federal environmental laws.

Permit conditions and mitigation measures. The Act defines sustainable groundwater management to include the use of groundwater. By January 1, 2017, DWR is to publish Best Management Practices (BMPs) for the sustainable management of groundwater that can be included in groundwater sustainability plans.  Groundwater sustainability plans are also to specify efficient water management practices. Once the BMPs and efficient water management practices are included in a local groundwater sustainability plan, they can be enforced against groundwater users. BMPs can also be expected to become permit conditions and mitigation measures, similar to how beneficial use designations are implemented under the Clean Water Act, and how species listings and critical habitat designations are implemented under the Endangered Species Act.

Developable area. The Act requires groundwater sustainability plans to include a map showing land suitable for potential recharge areas to be provided to local planning agencies, and processes to review land use plans and coordinate with land use planning agencies to assess activities that create potential risks to groundwater quality or quantity. The recharge area mapping may restrict a project site’s developable area similar to low-impact development under stormwater regulations or development footprints under regional habitat conservation plans.

Fees on pumping and regulated activities. The Act gives groundwater sustainability agencies expansive powers, including the power to impose fees on groundwater extractions and other regulated activities, and to fine those who do not pay, or attach their property or terminate their right to extract groundwater.

Operational restrictions. Under the Act, groundwater sustainability agencies can regulate well spacing, require pumpers to operate on a rotation basis, limit or suspend extractions from individual wells, and establish groundwater extraction allocations.

Enforcement and investigations. A groundwater sustainability agency is authorized to obtain a civil inspection warrant to inspect a person’s property or facilities in order to monitor compliance with the groundwater sustainability plan and evaluate water rights.

Groundwater sustainability plans do not supersede local land use authority. However, the new laws require cities and counties to consider groundwater sustainability plans when adopting or substantially amending their general plans. Also, DWR, the regional water quality control boards, California Department of Fish and Wildlife, and all other relevant State agencies must consider groundwater sustainability plans when revising or adopting their policies, regulations and criteria, and when issuing orders or determinations.

It is important for landowners, well owners, project proponents and businesses whose water is supplied in whole or in part by groundwater to ensure that their local city and county are informed of the land use ramifications of the new groundwater laws, and to participate in the State and local regulatory processes. The implementing regulations and groundwater sustainability plans should be focused on increasing the yield of local groundwater basins and prioritizing recharge areas on public open space. Otherwise, the new laws may result in unintended consequences that reduce available water supplies and restrict existing and future land uses.

Michele A. Staples is a water supply and land use development attorney and shareholder in the Firm's Irvine office. She advises and represents landowners and businesses in the agricultural, mining, and development industries, as well as public agencies in their roles as property owners and project proponents.

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