Changes

ights. Before 1914, appropriative rights only
required that a water user post a notice of
intent to divert water. 13 After December 19,
1914, individuals were required to file an
application with the newly created state ad -
ministrative agency—now known as the State
Water Resources Control Board—and demonstrate
that unappropriated water was available
and could be put to beneficial use. 14
Post-1914 rights are subject to a greater de -
gree of regulation by the Water Board, but
all appropriative rights may be lost through
nonuse or abandonment, which has become
the subject of litigation in recent months. 15
Another vital source of fresh water in Cal -
ifornia is groundwater. Groundwater comes
from rain or snow that seeps below the earth’s
surface and accumulates in large underground
layers of saturated rock called aquifers. 16
Once inside, the groundwater can be extract -
ed through drilling wells. In a typical year,
groundwater accounts for 30 percent of water
use, but in years of drought it can account
for up to 60 percent. 17
Compared to the law pertaining to use
of surface water, restrictions on groundwater
use in California have historically been mark -
edly lax. In 1903, the California Supreme
Court limited groundwater use to reasonable
and beneficial use. 18 This past year, new regulations
were passed in California regarding
the use of California’s groundwater. 19
A complex network of reservoirs, dams,
canals, and aqueducts delivers water across
the state. Southern California currently ob -
tains much of its water through the Los Ange -
les Aqueduct and the State Water Project,
which is the world’s largest publicly built
and operated water and power development
and conveyance system and which also serves
Northern California. 20 Southern California
receives a significant portion of its water
from the Colorado River, which has remained
a source of contention over the years. Under
the Law of the River, Colorado River water
is apportioned to several states known as
Upper and Lower Basin states. A Lower Basin
state, California is entitled to 4.4 million
acre-feet per year of Colorado River water.
For decades, California regularly used more
than its allotment. However, as other states’
water needs grew, the federal government
placed pressure on California to live within
its annual allotment. 21
The QSA and the Salton Sea
Desperate to avoid critical water shortages
in some of its largest cities, California turned
to the Imperial Irrigation District (IID). In
2003, an interconnected series of agreements
were made among the IID, the state of Cal -
ifornia, other California water agencies, the
federal government, and Indian tribes. Col -
lectively, these agreements are known as the
Quantification Settlement Agreement (QSA).
The centerpiece of the QSA was a proposal
that the IID conserve water and arrange for
the long-term transfer of that conserved water
to three other major Southern California
water users: the San Diego County Water
Authority, the Coachella Valley Water District,
and the Metropolitan Water District. 22 This
is the largest water agri culture-to-urban water
transfer in U.S. history. 23 For its part, the
state government agreed to mitigate the effects
of the water transfers on, and to restore, the
Salton Sea. 24
The Salton Sea, California’s largest lake,
occupies approximately 370 square miles of
low-lying areas in Imperial and Riverside
counties in southeastern California. 25 The
sea in its current incarnation was formed in
1905, when during a flood year the waters
of the Lower Colorado River broke a levee. 26
Be sides being beautiful, the Salton Sea has
be come one of California’s most critical environmental
resources. It serves as an in dis -
pensable buffer against windblown dust emissions
in the Imperial and Coachella valleys,
two regions that already suffer from some
of the worst air pollution in California and
the nation. 27 It is also one of the most important
habitats in the United States for migratory
birds, supporting numerous endangered and
threatened species at a time when such habitats
have dwindled and almost disappeared. 28
In 2003, shortly after the QSA was executed,
litigation was filed regarding the validity
of that agreement and the environmental
impacts of the QSA transfers under CEQA.
After an appeal in June 2013, the trial court
issued an order validating, in part, the QSA. 29
Appeals to that ruling have been dismissed.
In November 2014, the IID petitioned the
State Water Resources Control Board to compel
immediate action towards the restoration
of the Salton Sea. In response to the petition,
a workshop examining the issue was held
on March 18, 2015. 30 At the March workshop,
there was overwhelming consensus that
continued inaction by the state at the Salton
Sea is not acceptable. 31
If the state does not act decisively before
the end of 2017, experts agree that the Salton
Sea will contract, exposing approximately
100 miles of playa to the air, which will
potentially result in massive dust storms and
the emission of tens of thousands of tons of
dust per year into the air, including toxic
compounds of arsenic, cadmium, chromium,
lead, and selenium. 32 This would likely result
in a significantly increased incidence of heart
disease, heart attacks, lung cancer, asthma,
and premature death in the Imperial and
Coachella valleys, resulting in billions of dollars
in public health costs. 33
Following the workshop, Governor Jerry
Brown formed a task force and appointed
an assistant secretary for Salton Sea policy
to develop new and achievable restoration
plans. 34 The task force announced in early
October 2015 that the Natural Resources
Agency is committed to the immediate implementation
of a Salton Sea Management Pro -
gram that prioritizes protecting regional air
quality and responding to habitat impacts
resulting from water transfers. These actions
are noted to be an essential means of maintaining
the security of California’s Colorado
River water supply. 35 These are hopeful signs,
but it remains to be seen whether Governor
Brown’s task force will implement, and the
state will fund, the efforts necessary to avoid
an environmental and public health catastrophe
in California.
Groundwater Legislation
California’s historic drought has had a sig ni -
ficant impact on California’s groundwater
supply. In an effort to slow the rapid depletion
of California’s groundwater basins, the Sus tain -
able Groundwater Management Act (SGMA)
was implemented in early 2015. 36 The SGMA
was an unprecedented attempt at addressing
the lack of comprehensive groundwater regulation
in California. The SGMA requires that
local agencies, designated as “groundwater
sustainability agencies,” consider beneficial
uses of the groundwater in order to develop
monitoring plans for the long term sustainability
of California’s basins. 37 The agencies
are given 20 years to implement and achieve
groundwater sustainability goals. 38
Assembly Bill 1390 and Senate Bill 226,
which were approved by the Governor on
October 9, 2015, provide further clarity to
the SGMA. AB 1390 added a streamlined
process for adjudicating rights in a groundwater
basin to the California Code of Civil
Procedure. 39 Instead of the previous groundwater
dispute process, which could last for
years (and employ scores of lawyers), the new
law requires, among other elements, that parties
initially disclose detailed information
regarding extractions from the basin in the
prior 10 years, the type of water rights claimed,
and other details. 40 Potentially problematic
is that the law allows the adoption of a proposed
stipulated judgment if it is supported
by groundwater extractors responsible for at
least 75 percent of the groundwater extracted
during the five years prior to the action. 41
Parties who object are re quired to demonstrate
that the proposed stipulated judgment does
not meet requirements, effectively transferring
the burden of proof. 42 Functionally, this provision
will allow a majority of users to force
a solution on other parties to “go with the
flow” or object and shoulder the burden of
proving the inequity. SB 226, in turn, clarifies
that the state may intervene in groundwater
adjud ications, to further the objectives of the
18 Los Angeles Lawyer April 2016