Water Adjudication FAQ
What are adjudications, and how do they impact California’s water crisis?
Adjudication is a legal process that entails a court resolving disputes between parties; in this sense, adjudications have some similarities to arbitration hearings.[1] Water rights adjudications focus on defining the conflicts and claims of parties competing for groundwater or surface water resources, determining the amount of water that can be used, distributing rights for specific quantities of water, and assigning consumption priorities during droughts or other circumstances that induce shortages.[2]
In California, adjudications created the central rules governing the management of more than two dozen groundwater basins.[3] These areas are, however, subject to annual reporting requirements.[4] For most other groundwater basins, the state’s Sustainable Groundwater Management Act (SGMA)[5], adopted in 2014 and later amended, establishes procedures for allocating groundwater use. SGMA established new requirements to develop sustainable management programs for “high” and “medium” priority groundwater basins found to be already in overdraft or vulnerable to overdraft.[6] Other requirements also apply to “critically overdrafted” groundwater basins.[7]
Following its enactment, SGMA has been amended to clarify the adjudication process determining how rights in a basin are allocated. Most of SGMA’s adjudication provisions took effect at the beginning of 2016, such as new code requirements setting forth the methods and procedures used in comprehensive groundwater adjudications and other provisions meant to harmonize groundwater adjudications with other SGMA objectives.[8] Further amendments approved in 2023 address a few of the most glaring inequities, access problems, and exclusions in the existing process.[9] Among other things, they included precautionary measures against overpumping amid adjudications and a new requirement for courts in groundwater adjudications to consider “the water use of and accessibility of water for small farmers and disadvantaged communities” when making a judgment.[10]
For surface water, the State Water Board has statutory authority to adjudicate rivers and streams in response to submitted petitions. These statutory adjudications are first decided by the Board, which can set limits on total use, curtail use during drought periods, and make determinations on the validity or reasonableness of certain water rights. The Board’s initial determination is then submitted to a court, which issues the adjudication decree.
As the state’s freshwater ecosystems decline due to chronic overuse and increasing climate impacts (including heat and drought), adjudications may be increasingly used in areas where water use is highly contested. The outcomes will determine whose water needs are prioritized.
What is involved in a water adjudication?
In a groundwater adjudication, the goals are: establishing the sustained yield of the disputed groundwater basin; determining who has pumping rights through prior use or through valid claims that may have been superseded or overlooked; and the distribution of water according to the sustained yield findings. [11] Under SGMA, local groundwater sustainability agencies are charged with making sustainable yield findings and enacting rules to achieve them. [12] SGMA also allows the State Water Board to restrict pumping for groundwater basins where local agencies plans are deficient. This state control is similar to a court-mandated adjudication but does not necessarily lead to firm and final determinations of groundwater use rights.
In a surface water adjudication, the State Water Board evaluates the public interest, water rights claims, and other information, such as decisions under the federal and state endangered species acts, to determine water allocations. The Board’s long-pending Bay-Delta Plan[13] update includes adjudicative elements because it must set the rules for the amount of freshwater that must flow into and through the Delta to be effective. A related type of adjudication is the declaration of a fully appropriated stream system,[14] in which the Board may find that no new water rights can be granted because all the available water is already assigned to different water rights holders.
All adjudications are highly technical legal processes that depend on area-specific data. These proceedings can be lengthy and expensive, but when properly inclusive and complete, provide some degree of certainty and can improve sustainability for groundwater basins or stream systems.
What is the relationship between the courts, the federal government, and the State Water Board in adjudications?
For surface water adjudications, the Board has initial responsibility. The Board can adjudicate both specific water rights holdings and basin-wide[15] water allocations. However, the Board’s decisions (or inaction) can be appealed to the courts, which can review whether the Board’s decisions meet statutory, constitutional, and public trust requirements. In addition, for adjudications adopted via water quality control plans – such as the Bay-Delta Plan – the U.S. Environmental Protection Agency can review whether they meet federal legal requirements, including compliance with the Clean Water Act and the Civil Rights Act.[16]
Biological opinions issued by federal fisheries agencies can also impact surface water adjudications by requiring certain flows to protect endangered species.[17] These opinions have historically faced legal challenges, leading to court decisions affecting the timing and quantity of water diversions.
Groundwater adjudications are generally conducted by a court. However, State Water Board staff may be enlisted as technical experts to support the court in reaching decisions.[18] Generally, after making an adjudication decision, the court will appoint a Watermaster[19] to implement it.
What happens when water rights or pumping rights are contested in an adjudication?
The State Water Board or a court may require the submission of evidence and allow for testimony on the contested rights or pumping allowances. For surface water, these cases also rely on laws that specify and inform how a water right must be permitted and maintained.[20] For groundwater, historic use is often a key determinant of adjudication outcomes.
How does a Watermaster function?
Generally, a Watermaster will employ or contract experts to monitor groundwater levels and water quality, and make recommendations about pumping allowances, recharge projects, and other actions that impact the basin. The Watermaster votes on whether to adopt the recommendations, and issues regular reports to the court on compliance with the adjudication.[21]
What’s the greatest challenge to equitable adjudication?
Water is California’s most essential natural resource, so it comes as no surprise that its control and distribution are inequitable, characterized by conflict, and driven by money. As noted, adjudication requires time, expertise, and funding, and the petitioner with deep pockets has a distinct advantage in any adjudicatory process; in other words, it reflects the dynamics of the legal system as a whole. To achieve water equity, we must first ensure that adjudication is equitable.
How does the public trust apply to adjudications?
Surface water is a public trust resource, meaning that it belongs to the people in common. Groundwater that is hydrologically connected to surface water is also a public trust resource.[22] The State is the public’s trustee[23] for these water resources, and thus all state agencies and divisions, including cities and counties, have a duty to consider impacts on trust resources and must avoid or mitigate those impacts when feasible. This includes the State Water Resources Control Board, which is compelled to uphold the public trust in its decisions. Courts must also consider public trust needs when adjudicating streams and interconnected basins. The Public Trust Doctrine allows any citizen to sue if it fails in its responsibilities as trustee, and some landmark law has been established through this process, most notably National Audubon Society v. Superior Court,[24] which limited water diversions from Mono Lake by the City of Los Angeles. Adjudications followed the Mono Lake decision. The required review may also implicate other legal requirements interrelated with the exercise of public trust duties. For example, protections against unreasonable uses in Article X, section 2 of the California Constitution apply to all California water sources, including groundwater.[25]
How does water adjudication apply to California’s tribes?
Due to a history of violence, displacement, and discrimination, many California tribes lost access to land and water and were not recognized by the federal government. These assaults on tribal sovereignty are ongoing. Sites Reservoir, a project that would submerge tribal land and further restrict tribal water access,[26] is a glaring and recent example. As a result, tribes have struggled to reclaim their water rights and have been sidelined in adjudication processes. However, tribal rights are increasingly recognized as a major issue in legal actions involving water distribution, and tribes are now petitioners in several legal cases on water adjudication and allocation.[27]
Are there alternatives to adjudication?
There are. Negotiated settlements can obviate the necessity of adjudication in surface water rights issues. For example, stakeholders could agree to maintain a lake level at a certain point or establish certain volumes for unimpaired flows in a river. However, if these agreements are merely voluntary and not incorporated into legally binding requirements, they may not lead to environmentally beneficial outcomes. The currently proposed voluntary agreements (VAs) for the Bay-Delta Plan are a good example of a weak alternative to an adjudication. Negotiated in secret, the proposed VAs excluded tribes and environmental organizations; if adopted as written, they would circumvent the State Water Board’s regulatory responsibility and authority to set enforceable flow standards to protect the Bay-Delta ecosystem.[28]
Negotiated alternatives to court-imposed orders may also be pursued by stakeholders in groundwater disputes, though SGMA has complicated such options.[29]Emboldened by some inherent weaknesses in SGMA’s language, local authorities have sometimes attempted to establish pumping “agreements” that favor the interests of powerful stakeholders over the protection of groundwater resources. Water equity advocates are responding by taking such cases to court, with adjudication the likely outcome.[30]
How does CWIN get involved in adjudications?
Through its litigation work, CWIN engages in various adjudicatory forums. These include State Water Board water rights proceedings and water quality control plan updates, specific groundwater adjudications, and court filings related to use of the public trust in water decisions.
[1] https://ecology.wa.gov/water-shorelines/water-supply/water-rights/adjudications#:~:text=A%20water%20right%20adjudication%20is,and%20its%20priority%20during%20shortages.
[2] https://www.watereducation.org/aquapedia/groundwater-adjudication
[3] See https://water.ca.gov/Programs/Groundwater-Management/SGMA-Groundwater-Management/Adjudicated-Areas, accessed October 10, 2024; R. Langridge, et al., An Evaluation of California’s Adjudicated Groundwater Basins (2016), https://cawaterlibrary.net/document/an-evaluation-of-californias-adjudicated-groundwater-basins/. Most of the adjudicated groundwater basins are in Southern California.
[4] See, e.g., Water Code section 10720.8 (listing these basins and requiring annual reports).
[5] See https://www.waterboards.ca.gov/water_issues/programs/gmp/about_sgma.html, accessed October 10, 2024.
[6] See https://www.waterboards.ca.gov/water_issues/programs/sgma/groundwater_basins/.
[7] See https://water.ca.gov/Programs/Groundwater-Management/Bulletin-118/Critically-Overdrafted-Basins.
[8] See https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1390 (AB 1390); https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB226 (SB 226); R. Langridge, et al., op cit, pp. 8-9.
[9] See https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB779 (AB 779).
[10] See https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB779 (AB 779), Code of Civil Procedure, section 850 (quoted language); https://legal-planet.org/2023/10/12/one-more-key-groundwater-bill-just-became-law/.
[11] https://water.ca.gov/Programs/Groundwater-Management/SGMA-Groundwater-Management/Adjudicated-Areas
[12] https://water.ca.gov/Programs/Groundwater-Management/SGMA-Groundwater-Management
[13] https://www.waterboards.ca.gov/waterrights/water_issues/programs/bay_delta/, accessed October 10, 2024.
[14] https://www.waterboards.ca.gov/waterrights/water_issues/programs/fully_appropriated_streams/, accessed October 10, 2024.
[15] A hydrologic basin may consist of a single river or lake, or multiple water bodies within a geographic drainage area.
[16] See https://www.epa.gov/sites/default/files/2021-04/documents/intro_to_wqs.pdf, accessed October 10, 2024.
[17] See https://www.fws.gov/service/esa-section-7-consultation, and https://www.fisheries.noaa.gov/national/endangered-species-conservation/biological-opinions-noaa-fisheries-office-protected, accessed October 10, 2024.
[18] California Water Code, Section 10737.
[19] See https://escholarship.org/uc/item/71n7v525, accessed October 10, 2024, for a description of the roles of Watermasters in adjudicated groundwater basins.
[20] https://www.waterboards.ca.gov/waterrights/water_issues/programs/applications/, accessed October 10, 2024.
[21] https://escholarship.org/uc/item/71n7v525.
[22] See, e.g., Environmental Law Foundation v. State Water Resources Control Board (2018) 26 Cal.App.5th 844, https://casetext.com/case/foundation-v-state-water-res-control-bd.
[23] https://www.monolake.org/learn/aboutmonolake/savingmonolake/publictrust/, accessed October 10, 2024.
[24] https://www.casebriefs.com/blog/law/property/property-law-keyed-to-cribbet/interests-in-land-of-another-and-in-natural-resources-affecting-anothers-land/national-audubon-society-v-superior-court/
[25] See, e.g., Light v. State Water Resources Control Board (2014) 226 Cal.App.4th 1463, 1477-1481, https://casetext.com/case/foundation-v-state-water-res-control-bd
[26] See https://www.youtube.com/watch?v=FO5iRrTtUU4, accessed October 10, 2024.
[27] https://calmatters.org/environment/water/2023/08/california-water-agency-investigation-discrimination/
[28] https://restorethedelta.org/2024/04/23/delta-flows-no-flows-for-the-delta-if-big-water-contractors-have-their-way/, accessed October 10, 2024.
[29] https://water.ca.gov/Programs/Groundwater-Management/SGMA-Groundwater-Management/Alternatives
[30] https://mavensnotebook.com/2024/07/10/acwa-the-challenges-of-implementing-the-sustainable-groundwater-management-act-ten-years-in/