Efforts to preserve California’s groundwater enter a new phase: a season of judgement

By Felicity Barringer

The first decade of California’s Sustainable Groundwater Management Act has been one changing seasons as farmers, engineers, lawyers, bureaucrats and environmental experts grapple with ways to stop the pumping away of the state’s groundwater.

The first season of the process, intended to preserve a resource that provides between 40 to 60 percent of California’s water supply each year, saw the painstaking work to define groundwater basin boundaries and create local agencies. This was followed by a season during which these agencies, their members and their engineering consultants wrote first-of-their-kind plans for managing their stressed resource. These were submitted to the state.

Now the season of judgment has arrived. Agencies with stressed groundwater basins have had several chances to establish adequate controls. The state’s Department of Water Resources decides whether the plans are likely to succeed – “complete” – or remain “incomplete” or worse, “inadequate.”

These most problematic plans are sent to a different agency: the State Water Resources Control Board, which decides if they should be put on probation, allowing the state to take over management, at least temporarily.

Putting a basin on probation – much less taking over its management – runs contrary to the original hope for the law. The legislature took pains to keep responsibility for water conservation at the local level and defer confrontation between the state and local authorities. The new groundwater sustainability agencies (GSA’s) have been pioneers in the expensive and complex task of assessing their resources, their geology, and their needs in creating plans to preserve groundwater.

“A big hill to climb” 

Not surprisingly, the areas that have consumed the most groundwater are finding it hardest to implement the needed curbs on farmers’ demands. “People are trying to get down and do it,” said Felicia Marcus, a former head of the water board. “Some of the subunits are being recalcitrant. And some couldn’t get there because it’s hard. I don’t blame the GSA’s that are trying really hard. They’ve got a big hill to climb.”

Probationary status is a red line for many local farmers. With outside oversight looming, efforts to forestall conflict between state and local agencies now face their greatest test.

Probationary status is a red line for many local farmers. With outside oversight looming, efforts to forestall conflict between state and local agencies now face their greatest test. As of the end of 2024, the Department of Water Resources has approved 71 of the 111 sustainability plans submitted for basins designated high or medium priority. Another 13 it deemed incomplete. 

Six have been referred to the State Water Resources Control Board, which will decide whether probation is warranted. In two cases, they decided it was. In 2024 the Board put the Tule and Tulare Lake groundwater sub-basins on probation. Located in the southern San Joaquin Valley, they lie in a region where groundwater has created an agricultural colossus – output of the area’s five counties was worth $29 billion in 2024, WaterWrights reports. But hundreds of local wells have dried up and the ground surface has dropped measurably –  suffering from extreme subsidence. 

Last month, Stanford University researchers reported that in the Valley as a whole, subsidence between 2006 and 2022 averaged nearly an inch per year. Four groundwater basins in the southern San Joaquin Valley count among the world’s 100 most overdrafted, according to CalMatters. 

How would probation or state management change the state of affairs? For one, the Board can require installation of water meters to measure withdrawals and levy usage fees of $300 per well and $20 per acre-foot of water pumped. 

Facing sanctions, farmers get help from a state law regulating regulators

When the state imposed these restrictions on the Tulare Lake subbasin, the Kings County Farm Bureau, whose members are part of the basin, sued, claiming the demands were made illegally and were “arbitrary and capricious.” Kings County is home to two of the state’s biggest farming outfits, Sandridge Partners LLC, controlled by John Vidovich, and the J.G. Boswell Farming Company. A 2022 crop report valued King County produce at more than $2.5 billion.

A Circuit Court judge last month agreed with the farmers and blocked the state from imposing restrictions on water users in the Tulare Lake subbasin. Kings County Judge Kathy Ciuffini ruled the board’s action violated the right of the farmers affected to an appeals process and someone to contact to start that process. These rights are enshrined in the state’s Administrative Procedure Act (APA), a 1945 law intended to put reins on state regulators.

The state Board has appealed the new ruling; Edward Ortiz, a spokesman for the board, said “The Legislature explicitly provided the Board with a statutory exemption from the APA for its SGMA actions.” An appeals court in late November stayed any action on Judge Ciuffini’s decision until it rules on the appeal.

There have been no legal actions involving the neighboring Tule subbasin, which was the second put on probation. But it is safe to say the managers there are watching what happens to Judge Ciuffini’s decision on appeal.

“Any time you are regulating people who do not want to be regulated, lawsuits will follow”

Whether this will be the first of many legal challenges to SGMA remains unknown; two attorneys versed in water law had different reactions. Thierry Montoya, a partner at Frost, Brown Todd and a member of their environmental practice group, said of the state board: “Their enforcement and tone is needlessly heavy-handed. They’re also a little tone-deaf. They’ve been very aggressive on this regulatory hearing. 

“As a public body and a SGMA-designated backstop,” he added, “the SWRCB should strive to assist local agencies to achieve sustainability goals. Not in a manner that suggests: ‘It’s our way whether you like it or not.’” He also noted the judge’s concern about the state board failing to allow subsections of the basin to be considered “good actors” and avoid probation.

Dave Owen, a professor at the University of California College of Law, was more sanguine. “Lawsuits are inevitable,” he said. “Any time you are regulating people who do not want to be regulated, lawsuits will follow.” He added that the Kings County Farm Bureau’s lawsuit “is a problem but not anything existential for the statute. …It’s a reminder to be careful in documenting your reasoning.”

As for the future, Owen continued, “Will there be years of legal flights? I think yes. But this is a two-part answer. The first part: Yes, we’re going to have dozens of GSAs and GSPs [challenged] in basins that have to make the most painful transitions.” He added, “The percentage of those [challenges]” that impede state enforcement of SGMA “will be small.”

 

Damage from over-pumping also pits farm interests against each other

The state is not the only defendant in groundwater cases. Farmers are suing each other over who should take responsibility – and pay – for rebuilding a 33-mile section of the Friant-Kern canal. Part of the federal Central Valley Project, the canal provides crucial surface water to growers as far south as Bakersfield. Land subsidence below the canal caused by years of over-pumping has cut total deliveries and necessitated a $292 million repair job that started in 2022. 

“The subsidence issue has risen to the top… in terms of things that are really hard” to deal with, said Ellen Hanak, a senior fellow at the Water Policy Center of the Public Policy Institute of California.

Four years ago, in a settlement, the Eastern Tule subbasin’s sustainability agency – a part of the larger Tule Subbasin – agreed to pay the Friant Water Authority and the Arvin Edison Water Storage District for repairs if pumping exceeded specific limits. The parties involved hoped this agreement would forestall future lawsuits. But a judge ruled last July that the Friant officials were mistaken in maintaining that in 2021 the Eastern Tule agency had committed to pay $220 million for repairs, saying the payment was contingent on the pumping limits being exceeded.

The same ruling required the Eastern Tule agency to answer the lawsuit’s two other claims: that, as Our Valley Voice reported, “Eastern Tule’s managers still let its users pump too much groundwater before penalizing them” and that it miscalculated the penalties it collects.

How much of the cost of canal repairs will be paid, and by whom, became even more unclear in the wake of a continuing flurry of lawsuits. Last summer the Friant Water Authority and the Arvin Edison water storage district sued the Eastern Tule GSA, saying it was about $90 million short of the payments it committed to the $326 million canal repair bill. In their turn, three Tulare County irrigation districts sued the Authority in November claiming it used non-public meetings to require them to pay up to $295 million.

Reimbursement of the federal government for repair costs is already overdue. SJV Water reported in November. “Friant is about $90 million shy of its share of the $326 million already spent to rebuild a section of the sinking canal.” The federal Bureau of Reclamation, owner of the canal, wants the agency to explain its plan to pay $250 million more. Friant blames the funding shortfall on the Eastern Tule Groundwater Sustainability Agency’s failure to meet its commitments.

Repair work thus far hasn’t stopped the subsidence. In part of the Tule subbasin, the land has subsided 3.5 feet since 2015, and the Los Angeles Times reported that the head of the Friant Water authority blamed the Eastern Tule agency for its failure to limit pumping and avoid subsidence.

The cost of damage to shared infrastructure can pit agencies or their members against one another. So can probationary status. “I think we’re at that fork in the road where the probation… will force us to come together or completely fracture this basin,” the town of Porterville’s assistant city manager Michael Knight, told the Valley Voice after the Tule subbasin, which include the Eastern Tule basin, was put on probation in September. Events proved him prophetic. Six of its seven members have either left the Eastern Tule GSA to form their own agencies or are planning to do so, SJV Water reported. 

Will groundwater managers have more leeway to capture floodwater and stave off cutbacks?

If the legal fights and agency reorganizations focus on too much groundwater disappearing, more hopeful conversations focus on farmers’ emerging ability to make groundwater reappear. How? By capturing floodwater and using it to recharge aquifers. Over the decade, groundwater sustainability agencies have become more adept at channeling water back into their aquifers. Many are trying to improve their recharge techniques in time for the floods produced by wintertime “atmospheric river” events. 

As a result, some see groundwater’s future as a race between the need to increase aquifer recharge and the need to manage demand and cut back on withdrawals. Demand management is a central feature of the plans that are moving forward. And as they start to take hold, the reality of loss – of water, of farmland, of hope – is hitting home. The Public Policy Institute estimates between 10 and 20 percent of the San Joaquin Valley’s five million acres will see an end to vegetable-, grain-, grape-, and nut-growing by 2040. 

At a celebratory conference in Sacramento in November marking SGMA’s 10th anniversary. Don Cameron, a farmer in Fresno County who has made recharging groundwater a priority, said that in the wet year of 2023, “we proved we could do [recharge] on a very large scale…. People were able to put in pumps, different types of conveyances to move the water quickly.”

Water law, however, gives significant rights to water users downstream of any flood. To make sure that those doing floodwater recharge didn’t have to worry about violating others’ rights, in 2023 Gavin Newson issued an executive order later codified into law, that, as CalMatters reported, “suspend[ed] regulations and restrictions on permitting and use to enable water agencies and water users to divert flood stage water” for recharge. 

Cameron added, “We need to make permitting more responsive and lower cost. We need to simplify the process and make it applicable to watersheds. We need to establish certainty” about the rules governing recharge operations. “Growers want long-term certainty,” he said.

Cutbacks or recharge? Experts say both will be needed to make SGMA work

The possibility of recharge making up for groundwater depletion have bewitched some groundwater managers, but despite some locals’ wish that they can recharge enough to keep groundwater levels stable and avoid cutbacks, experts don’t see it that way. Ellen Hanak at PPIC said that “In 2023, when the skies opened, it was a real boon for the supply side.” But, she said, “in some of these basins, things are so tight they will need serious demand reduction.” 

Aaron Fukuda, the interim general manager of the Mid-Kaweah Groundwater Sustainability Agency, agrees. In an interview he said, “Recharge won’t solve the problem. You can only solve with recharge if Mother Nature cooperates. If she doesn’t, your primary action is demand management. We’re going to lead with demand management and bolster it with recharge.” 

His agency was headed for probation like the neighboring agencies in the Tule and Tulare Lake basins, but last month, after it adopted a new sustainability plan, the State Water Control Board canceled a probationary hearing scheduled for this month. 

How much more restrictive is his basin’s revised plan? “On a scale of one to 10? 10,” he said, adding, “our previous consultant recommended a glide path approach” with gradual reductions over time. “Our new approach is: we have to get to sustainability immediately, rather than letting groundwater levels drop.” 

Rather than showing his growers hydrological or engineering charts, he showed them two cartoons: the first showed lemmings at the edge of a cliff with a precipitous drop; the second showed the same cliff, but the lemmings navigating it along switchbacks with stairs. “My farmers are still small growers,” he said. “Farming is not a profession, it’s not a career, it’s a way of life.” His message to them: “We’re going to lose farm ground but we’re going to do everything we can to minimize it. I call it ‘right-sizing’ agriculture.”

What will the plan mean for farming in the basin? Fukuda estimated that farmers in the subbasin will eventually have to fallow perhaps 15 percent of its agricultural land. 

The stakes? “We’re at risk of losing everything”

“Nothing about this is easy or pretty,” Deanna Jackson, the executive director of the Tri-County Water authority, told CalMatters five months ago, “It’s all kind of ugly right now.”

Speaking at a meeting which ended with the Tulare Lake subdivision being put on probation, Joaquin Esquivel, chair of the state board, said, “The goal here is not to be punitive…. The reality is that probation is a step. It’s a process that ultimately is about local control. 

But Dusty Ference, executive director of the Kings County Farm Bureau, which brought the lawsuit that is now on appeal, has said that the core issue is ensuring controls don’t upend the agricultural economy. Earlier this year he told Fresno’s ABC News outlet. “We don’t have another industry that would make up jobs if they were lost. We’re at risk of losing the agriculture in Kings County; we’re at risk of losing everything.”

Aaron Fukuda agrees that significant changes loom as SGMA begins to bite and groundwater supplies are cut back, but he doesn’t believe that the agricultural economy will disappear. He worries about the attrition of the smaller farmers. “The agricultural world is being ushered into a new era,” he said. “The small family farmer doesn’t fit in any more.”

 

 

Edited by Geoff McGhee.