With two groundwater sustainability agencies (“GSAs”) competing for power to regulate intake wells for a hotly contested desalination plant proposed on Monterey Bay, an appellate court has embraced the preservation of local groundwater management authority as a touchstone for resolving disputes over the implementation of California’s Sustainable Groundwater Management Act (“SGMA”).
On November 13, 2023, the California Court of Appeal for the Sixth Appellate District held that where two GSAs claim overlapping jurisdiction, the county may serve as the GSA for the disputed overlap area to avoid the potential for the state to take over groundwater management.
Competing Notices for the Same Area in a Subbasin
The case arose in the Salinas Valley’s 180/400 Foot Aquifer Subbasin (“Subbasin”) that includes the City of Marina and the former Ford Ord area overlooking Monterey Bay. In April 2017, the Department of Water Resources (“Department”) posted notice of the decision by the Salinas Valley Basin Groundwater Sustainability Agency (“SVB GSA”) to become the GSA for the 180/400 Foot Aquifer Subbasin, including an area known locally as the CEMEX site or area. In April 2018, the City of Marina formed the Marina Groundwater Sustainability Agency (“City”) claiming jurisdiction over the CEMEX area located within City limits.
In reviewing GSA formations, the Department found that the City and the SVB GSA both claimed jurisdiction over the CEMEX area. Because of the jurisdictional overlap between the City and the SVB GSA, the Department concluded the CEMEX area was unmanaged by any GSA.
In December 2019, the County of Monterey (“County”) Board of Supervisors adopted a resolution approving the formation of a GSA for the CEMEX area. The County relied on Water Code section 10724(a), which states: “In the event that there is an area within a high- or medium-priority basin that is not within the management area of a groundwater sustainability agency, the county within which that unmanaged area lies will be presumed to be the groundwater sustainability agency for that area.” The Department posted the County’s notice of GSA formation for the CEMEX area and identified the County’s GSA as the exclusive GSA for the CEMEX area.
On January 9, 2020, the SVB GSA adopted a resolution approving the GSA for the 180/400 Foot Aquifer Subbasin but excluded the CEMEX area. The SVB GSA and County then entered into a coordination agreement pursuant to which the SVB GSA adopted the groundwater sustainability plan for the CEMEX area on the County’s behalf and implemented the plan for the 180/400 Foot Aquifer Subbasin. Accordingly, the SVB GSA groundwater sustainability plan covered the Subbasin except for the Ford Ord area.
Courts Uphold County as Exclusive GSA because of Competing GSA Formation Notices
The trial court held that the County’s approval of the SVB GSA’s groundwater sustainability plan for the CEMEX area made it the operative plan, so the SVB GSA’s formation notice was properly posted by the Department. The trial court reasoned the Department correctly determined that the CEMEX area was unmanaged under SGMA because of the competing jurisdictional overlap between the City and the SVB GSA. From there, the trial court concluded that the County was the presumptive GSA with exclusive management authority over the CEMEX area.
On appeal, the City argued that SGMA, specifically Water Code section 10724, did not authorize the County to serve as the GSA for the CEMEX area, because the County was a member of the SVB GSA and allegedly could not form a new, separate GSA. In the alternative, the City argued that section 10724 only applies when no local agency has provided notice of its intent to form a GSA for an area, and the City had provided such notice.
The appellate court rejected the City’s arguments on appeal, affirming the trial court’s judgment. Applying Water Code sections 10724 and 10723.8, the appellate court first found that an area within a SGMA-regulated groundwater basin is “unmanaged” when two agencies have submitted competing notices of intent to form a GSA for the same area, in which case neither agency can serve as the GSA for that area. Second, the appellate court found that where two competing GSAs failed to voluntarily reach agreement to designate an exclusive GSA for the disputed area — here, the CEMEX area — then section 10724 allows the county to serve as the GSA, so as to avoid the area’s being put on “probation” with possible intervention by the State Water Resources Control Board to impose an interim state groundwater management plan.
The appellate court found the preceding application of SGMA’s statutory language best carried out the Legislature’s goal of encouraging “local” groundwater management over top-down state management.
Implications
The courts are looking to SGMA’s goal of encouraging “local” groundwater management to resolve disputes arising from SGMA implementation. By recognizing the county’s role in filling the jurisdictional vacuum created by the competing claims of the City and the SVB GSA over who gets to regulate groundwater in the CEMEX area, the courts kept groundwater management local by avoiding the potential for the State Water Resources Control Board to intervene and directly regulate the CEMEX area. In evaluating options to resolve current and future disputes in the 127 high- and medium-priority basins regulated by SGMA, stakeholders should consider which options best protect local control by avoiding the potential for state intervention.
Questions
If you have any questions regarding this Legal Alert, please contact the following attorneys or any of Kronick’s Water Law attorneys.
Eric Robinson
erobinson@kmtg.com | 916.321.4576
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