David Aladjem Downey Brand LLP daladjem@downeybrand.com Sustainable Groundwater Management Program Emerging Legal Issues Urban Water Institute February 9, 2017 David Aladjem Downey Brand LLP daladjem@downeybrand.com

Introduction SGMA represents a sea change in groundwater management SGMA requires local agencies to cooperate in new ways SGMA also requires DWR to engage in peer review of plans All of these are hard – but necessary for California's future

Two Emerging Legal Issues GSA Formation Adequacy of Alternative Plans

GSA Formation – The Problem of a Common Resource "Can't we just get along?" Shared groundwater basins = common law shared resource Overlying rights Proportional reductions Mutual prescription Tragedy of the commons Common pool resources (Elinor Ostrom)

GSA Formation – Institutional and Legal Barriers SGMA protects institutional boundaries SGMA protects water rights SGMA wants a single plan for a basin E pluribus unum – "out of many, one" Easier said than done

The Overlap Issues "No man can serve two masters" Competing plans are a recipe for disaster Possible solutions Limit each GSA to non-overlapping areas – but then create more "white areas" Form a GSA to cover a whole basin Enter into an MOU that specifies how each overlap area will be managed Allow counties to cover overlap areas

The Overlap Issue – cont. Most common solutions Form a new GSA that includes all parties Coordinate efforts at a single GSP through an MOU that resolves overlaps Focus on practicality – what will meet the June 30, 2017 deadline?

The Alternative Plan Issues Functional Equivalency CEQA DWR Review

The Alternative Plan Issues The "functional equivalency" standard Technical considerations – does it really meet the GSP requirements? Legal considerations – does it really mean that the basin is sustainable? Process considerations – has there really been public input? DWR's review will establish the standard for GSP's Will it be "sustainable evidence? Will it be "preponderance of the evidence?"

CEQA Compliance CEQA does not apply to GSPs CEQA does not apply to adjudications Does CEQA apply to an Alternative that merely recites what has been done (either GWMP or 10-years of data)? But, what if the allegation is that the Alternative is inadequate? Is an Alternative simply a preliminary plan or could it be documentation of past activities?

DWR Review Technical review (see above) Public comments and review What if public controversy? Relationship between DWR and SWRCB review What if an Alternative is found to be inadequate? What about judicial review?

Conclusion Lots of legal/political unknowns, both for GSA formation and Alternatives There will be more clarity by the end of 2017 Setting the stage for the meat of SGMA in 2018+ Allocation of extraction rights Institutional collaboration/competition Funding – or its lack – will drive decisions

The great water lawyer Rudyard Kipling summed up SGMA: "If you can keep your head when all about you Are losing theirs and blaming it on you."

Please feel free to call or e-mail with questions Thanks! Please feel free to call or e-mail with questions David Aladjem Downey Brand LLP (916) 520-5361 daladjem@downeybrand.com