Tina Cannon Leahy� Attorney Supervisor�State Water Resources Control Board

Reviving Tulare Lake: Legal and Environmental Challenges in the Face of Water Scarcity and Restoration

2025 California Water Law Symposium

First a little bit about groundwater rights..

DISCLAIMER

February 2, 1848 – California is ceded by Mexico to the U.S. under the Treaty of Guadalupe Hidalgo��1849 – gold is discovered��First CA Legislature passes the Act of April 13, 1850����

“The common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state, is the rule of decision in all the courts of this state.”

California admitted to the Union September 9, 1850��

Getting the right

The English common law legal “backstop” applies to groundwater

�Because groundwater could only be claimed through ownership of land, overliers believed it was subject to common law doctrine that “whoever owns the soil, it is theirs all the way up to heaven and down to hell.”

​

In the seminal case of Katz v. Walkinshaw (1903) 141 Cal. 116, California Supreme Court Justice Shaw, writing for the majority, rejects the common law concept of absolute ownership of groundwater and – recognizing the arid “natural conditions” in the State – adopts the “doctrine of reasonable use.”

​

The Honorable Lucien Shaw

18^th Chief Justice of the

California Supreme Court

1913

Water Commission Act near miss on groundwater permitting?

​

1^st Amendment – act only applies to surface water and

“subterranean streams”

Where are we today?��

• No statewide permit system
• Three types of groundwater rights:
• Overlying
• Appropriative
• Prescriptive

​

​

Federal Reserved Rights Include Groundwater

• Federal reservations of land include the water necessary to effectuate the primary purpose of the reservation (Winters Doctrine)
• In assessing the water necessary to effectuate the purpose, groundwater is included: Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist. (2017) 849 F.3d 1262
• Amount, if any, will depend

​

Agua Caliente Reservation 1928

So how did we get to SGMA?�

How did we get to SGMA?

“When a basin is at risk of permanent damage, and local and regional entities have not made sufficient progress to correct the problem, the state should protect the basin and its users until an adequate local program is in place.”

http://www.ebudget.ca.gov/

“$1.9 million General Fund and ten position for the State Water Resources Control Board to act as a backstop when local and regional water agencies are unable or unwilling to sustainably manage groundwater basins.”

SB 1168 and SB 1319

AB 1739

​

September 16, 2014

Groundwater management in California is best accomplished locally.

“

”

Governor Jerry Brown

Where Is SGMA Mandatory?

Groundwater Basins

515 Alluvial Basins

94 High and Medium

Priority Basins

21 Critically

Overdrafted Basins

Critically Overdrafted Basins

> 250 GSAs

Formed by June 30, 2017

High & Medium Priority Basins

• Ranked by the California Department of Water Resources under the CASGEM program and determined as the most relied upon�
• These basins account for about 95% of all groundwater pumped in California�
• The Act exempts adjudicated basins from most provisions except reporting�
• Allowed sustainable basins to submit alternatives

​

SGMA Basics

Form

Agencies

Develop

Plans

Achieve Sustainability!

Implement

Plans

Locals Must Avoid Undesirable Results�

S:\EXECUTIVE\OSI\GMU\Outreach\Documents

Sustainability in SGMA

Basin operated within its sustainable yield and not experiencing undesirable results:

Water Code § 10721, subd. (x): �Significant and unreasonable… � …caused by groundwater conditions occurring throughout the basin.*

*GSAs are not required to address

undesirable results occurring prior to 2015

W here a local groundwater sustainability agency is not managing its groundwater sustainably, the state needs to protect the resource until…a local groundwater sustainability agency can sustainably manage the groundwater basin.

“

”

California Legislature

[ ]

State Intervention

TRIGGERING INTERVENTION

​

State Intervention: �Two-step process

Opportunity to fix issues but…

All pumpers report to the Board�(Wat. Code § 5202(a)(1))��Fees for Board administration�(Wat. Code § 1529.5 )��Board may require meters�(Wat. Code § 10735.2)

De Minimis users are not exempt

Corrective Actions

Schedule

Monitoring

Enforcement

Where are we now?

• Groundwater sustainability agencies formed in all basins�
• 20 critically overdrafted basins submitted plans January 31, 2020�
• All other basins subject to SGMA submitted plans January 31, 2022
• 65 Plans from 63 basins
• 5 voluntary Plans from low/very low priority basins

​

2022: DWR Determination�Critically Overdrafted Basins

Approved Groundwater Sustainability Plans:�

1. Santa Cruz Mid-County Basin
2. 180/400 Foot Aquifer Subbasin
3. North Yuba Subbasin
4. South Yuba Subbasin
5. Oxnard Basin
6. Pleasant Valley Subbasin
7. Las Posas Basin
8. Indian Wells Valley Basin

​

​

Map d

1

2

3

4

5

6

7

8

8

out of 20

Slide courtesy of DWR

DWR Determination �Incomplete Groundwater Sustainability Plans

1. Paso Robles Subbasin
2. Cuyama Valley Basin
3. Eastern San Joaquin Subbasin
4. Merced Subbasin
5. Chowchilla Subbasin
6. Westside Subbasin  
7. Delta Mendota Subbasin
8. Kings Subbasin
9. Kaweah Subbasin
10. Tule Subbasin
11. Kern Subbasin
12. Tulare Lake Subbasin

1

2

3

4

5

6

7

8

9

10

11

12

12

out of 20

Slide courtesy of DWR

1. Paso Robles Subbasin
2. Cuyama Valley Basin
3. Eastern San Joaquin Subbasin
4. Merced Subbasin
5. Chowchilla Subbasin
6. Westside Subbasin  
7. Delta Mendota Subbasin
8. Kings Subbasin
9. Kaweah Subbasin
10. Tule Subbasin
11. Kern Subbasin
12. Tulare Lake Subbasin

2023:�6 out of 20 inadequate

Common Areas of Deficiencies

Some basins with multiple Plans needed to further coordinate and address inconsistencies in their data and methodologies, as well as address other deficiencies DWR has identified

Lack of coordination among GSPs

Inconsistent data and methodology

​

Subsidence

​

Water quality

​

Drinking water impacts

​

Depletion of Interconnected surface water

​

Slide courtesy of DWR

v

v

Current Status

• Tulare Lake Subbasin – April 16, 2024 – on probation but currently in litigation w/preliminary injunction:

Kings County Farm Bureau v. State Water Resources Control Board

• Tule Subbasin – September 17, 2024 – on probation
• Kaweah Subbasin – November 2024 hearing cancelled
• Kern Subbasin – Hearing February 20, 2025
• Delta-Mendota Subbasin – 2025?
• Chowchilla Subbasin – 2025?

2024 DWR Determinations

13 of 63 non-critically overdrafted basins deemed incomplete, provided 180 days to correct deficiencies – final determinations soon

• Antelope
• Big Valley (5-004)
• Butte Valley
• Colusa
• Corning
• Fillmore
• Los Molinos
• Modesto
• Pleasant Valley
• Piru
• Red Bluff
• Tulelake
• Turlock

The Schooner Water Witch on Tulare Lake, 1883 – Wallace W. Elliot & Co.

SGMA & Litigation

Kings County Farm Bureau v. �State Water Resources Control Board�Kings County Superior Court Case No. 24CU0198

• April 16, 2024 – Tulare Lake Subbasin Probationary Hearing (basin designated probationary)
• May 16, 2024 – Kings County FB Petition and Complaint filed
• July 3, 2024 – State Water Board demurs to non-writ claims
• July 15, 2024 – Temporary Restraining Order granted
• September 13, 2024 – Demurrer denied (with leave to amend “equal protection” claim), Preliminary Injunction granted with injunction bond of $1
• September 30, 2024 – State Water Board files 2 extraordinary writs with Fifth Appellate District, Fresno (State Water Resources Control Board v. Kings County Superior Court) challenging denial of demurrer and preliminary injunction/$1 bond
• October 10, 2024 – Kings County FB dismisses “equal protection” claim
• Briefing ongoing

​

​

​

​

Adjudications

and SGMA

SGMA CHAPTER 12. �Determination of Rights to Groundwater �[Water Code § 10737.8]�

��

In addition to making any findings required by subdivision (a) of Section 850 of the Code of Civil Procedure or any other law, the court shall not approve entry of judgment in an adjudication action for a basin required to have a groundwater sustainability plan under this part unless the court finds that the judgment will not substantially impair the ability of a groundwater sustainability agency, the board, or the department to comply with this part and to achieve sustainable groundwater management.

​

​

CODE OF CIVIL PROCEDURE �TITLE 10. ACTIONS IN PARTICULAR CASES�CHAPTER 7. Actions Relating to Groundwater Rights� [§ 830 et seq.]�  

Section 850, subdivision (b):��The court may enter judgment in an adjudication action for a basin required to have a groundwater sustainability plan under the Sustainable Groundwater Management Act (Part 2.74 (commencing with Section 10720) of Division 6 of the Water Code), if in addition to the criteria enumerated in subdivision (a), the court also finds that the judgment will not substantially impair the ability of a groundwater sustainability agency, the State Water Resources Control Board, or the department to comply with the Sustainable Groundwater Management Act and to achieve sustainable groundwater management.

What about SGMA and reasonable use?

Opinion issued Feb 8, 2024

An issue of pay fees now, litigate later.

​

But appellate court poses several questions at the end for the adjudication…

“In this case, Mojave claims to have a vested water right to pump native groundwater from the Basin for use on its land, but it has never specified the quantity of its water right or its priority vis-à-vis other extractors, which raises several questions: �

• Assuming the Basin’s sustainable yield is only 7,650 acre-feet per year, how can multiple extractors each have a viable common law right to most or all of that water?

​

• Is using the Basin’s limited groundwater to irrigate a water-intensive crop like pistachios in the middle of the high desert a “reasonable and beneficial” use of water protected under the California Constitution, particularly considering most of those trees were planted less than 10 years ago? (See Cal. Const., art. X, § 2.) …�

Questions posed by the Fourth District Court of Appeals in Footnote 22

• Does a vested overlying right to groundwater mean a vested overlying right to free groundwater? �
• SGMA states that any judgment in an adjudication action for a basin required to have a groundwater sustainability plan must not substantially impair the ability of a groundwater sustainability agency to achieve sustainable groundwater management. (§ 10737.8.) What impact does that rule have on common law groundwater rights?

�We need not, and expressly do not, decide these difficult issues today. Indeed, it would be inappropriate to determine the relative priority of Mojave’s water rights in the vacuum of an appellate writ proceeding without other water extractors present. We anticipate these issues will instead by addressed in the related adjudication action; we express no view on the appropriate resolution.”

Questions posed by the Fourth District Court of Appeals in Footnote 22 (continued)

Questions?