Upstream, Midstream, and Downstream System Design for Sustainable Groundwater Management  Janet K. Martinez  Gould Negotiation and Mediation Program  Stanford Law School, Stanford, CA

Dispute System Design (DSD): Analytic Framework  Goals  Stakeholders  Context and Culture  Processes and Structure  Resources  Success and Accountability * Smith and Martinez (Harv. Neg. LR 2009); Bingham, Martinez and Smith (Conflict Reso. Qtrly 2016); Bingham, Martinez and Smith (Stanford University Press 2016).

UpstreamMidstreamDownstream Deliberative Democracy Public Engagement Dispute Resolution Collaborative Public & Network Mgmt. Legislative Quasi-Legislative Making policy Executive Implementing Policy Judicial Quasi-Judicial Enforcing Policy POLICY CONTINUUM of COLLABORATIVE GOVERNANCE

Groundwater Allocation in California Groundwater:  What is it?  Basins throughout the state provide half of freshwater supply  Overdraft now at 2 million acre-feet per year in excess of natural recharge  Why is it important?  If overdraft, land subsidence, saltwater intrusion, harmed ecosystems, lowered groundwater tables, impaired surface water rights

Who cares?  Overlying property owners  Municipal well owners (w/o overlying property rights)  Public water systems  Local land use agencies  Environmental users  Surface water users (if surface & groundwater bodies connected)  Federal government  Native American tribes  Disadvantaged communities  Monitoring entities

California Sustainable Groundwater Management Act of 2014 [SGMA]  Previously:  No groundwater regulation management standards; 2300 independent local agencies with overlapping jurisdictions, adjacent boundaries, competing for limited state funding and technical assistance; inconsistent planning  Allocation disputes primarily settled by adjudication; financially and temporally expensive  SGMA:  Establish Groundwater Sustainability Agencies to develop & implement Groundwater Management Plans

Dispute Resolution Process Continuum

Third-party Role  Groundwater Sustainability Agency Formation  Governance Structure  Convening Documents  Participant Engagement  Groundwater Sustainability Plan Development  Develop Data Collection Goals and Protocols  Joint Fact Finding  Consensus-based decisions

Collective Learning  Participants in a decisionmaking process, individually and collectively, find common understanding of a existing conditions, define the problem and ways of evaluating solutions  Factors that contribute: inclusiveness, extended engagement, information exchange, interaction, participant process control, process equity [Koonz]

Collective Learning  Organizational Structure: design of institutional arrangements for collaborative governance and norms to acquire information, communicate and act [Ostrom]  Social dynamics: developing a culture of trust and knowledge among participants [Koonz, Emerson]  Technology & Information: what types of information are needed to reduce uncertainty and make decisions

Scientific Information  Most effectively translated into management policies when salient, credible, and legitimate  Technical data:  Traditional: well-based sampling, testing and monitoring of an aquifer  New: geophysical methods provide large volumes of subsurface data across space and time  Collaborative models:  allow participants to try out various scenarios without conceding their positions

Resolving Groundwater Allocation Disputes  Traditional adjudication in superior court  Special act districts in which the legislature enacts allocation for a specific basin  Negotiated resolution by consensus amongst the users of a specific basin  Allocation enacted pursuant to local police powers

Pros & Cons of Adjudication Potential AdvantagesPotential Disadvantages  Creates binding property rights (usually)  Creates legal certainty  Quantifies the amount of water to which each user is entitled  Evidence procedure used by court can lead to shared information base  Can allow for resolution of related but separate issues (e.g. allocation of storage rights in aquifer)  Flexibility (i.e., may allow for solutions not available by other means such as market- based trades or fees)  Can result in continuing court jurisdiction over the basin**  Often time consuming (sometimes very time consuming)  Often very expensive. (However, it was pointed out that cost of negotiated or non- court settlements in basins could be similar.)  May not adequately account for interests of those who do not hold water rights; questions of standing remain.  Issues that parties do not reach agreement on during settlement process are ultimately decided by a judge.  Legal standard for deciding groundwater cases from previous case law remain unclear, creating legal uncertainty and perhaps incentives for parties to delay settlement.  Civil judges often lack technical expertise to adequately adjudicate these cases.  Can result in continuing court jurisdiction over the basin**

Streamlined Adjudication  The 2015 legislation has three main objectives:  make the adjudication process more cost-effective;  ensure that the process is fair and comprehensive; and  harmonize the process with SGMA to provide parties a forum to determine their water rights, but also to prevent them from using it to obstruct or delay SGMA.  Designed to work together:  SB 226 (Pavley): adds a chapter to SGMA in the Water Code with additional rules that apply to adjudications in basins that must develop management plans under SGMA.  AB 1390 (Alejo) amends the Code of Civil Procedure and codifies the rules for basin-wide groundwater adjudications.