Ninth Circuit Reverses District Court Ruling and Upholds the National Marine Fisheries Service (NMFS) Biological Opinion for Central Valley Project operations in California’s Central Valley.

The Ninth Circuit Court of Appeals today issued its decision in  San Luis & Delta-Mendota Water Authority v. Locke. The decision reverses and remands a previous district court decision that found NMFS'  2009 biological opinion (BiOp) concerning the Central Valley Project and its impact to salmon species to be arbitrary and capricious.  The BiOp recommended that he Bureau of Reclamation change its operations with respect to in diverting water for the Central Valley Project in order to avoid jeopardizing endangered salmon species.

Relying on its recent decision in San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir. 2014), a case that addressed a 2008 BiOp regarding irrigation impacts on the threatened smelt, the court of appeals found that the district court did not give the NMFS the "substantial deference" that the agency is due under the Administrative Procedure Act (APA).

Independently reviewing the record in support of the BiOp, and excluding supplemental declarations that were reviewed by the district court, the appellate court found the NMFS' 2009 BiOp to be reasonable and supported by the record. The appellate court also found that the NMFS is not required to show that each requirement it imposes on a project such as the CVP is "essential to avoid jeopardy."

Table of Deadlines Applicable to the Sustainable Groundwater Management Act Deadlines

DEADLINES APPLICABLE TO THE SUSTAINABLE GROUNDWATER MANAGEMENT ACT*

Deadline [Beginning]	Milestone [Responsible Party]	Comment [Code Section]
January 31, 2015	Categorize and prioritize basins as high, medium, low, or very Low.  [Department of Water Resources (DWR)]	The characterization will be based on DWR Bulletin 118, or modifications to the boundaries of basins in the bulletin. [§ 10722.4(a)]
January 1, 2016	Adopt regulations for basin boundary adjustments and accept  adjustment requests from local agencies. [DWR]	Keep abreast of DWR activity on this issue. There will be three (3) workshops. Make sure that you or a representative can attend to ensure that you are familiar with the process to adjust basins if you intend to propose changes to the boundaries for a basin identified in bulletin 118. [§ 10722.2(4)(b)]
April 1, 2016	Submit final judgment /order / decree and required report to DWR (report annually thereafter). [Water-master or local agency in adjudicated area.]	The report to be submitted annually each year must provide, to the extent available, the: groundwater elevation, amount of groundwater extracted during the year, surface water supplied for recharge, total water use in the basin, changes in the amount of groundwater storage available, any annual report submitted to the court. [§ 10720.8(f)]
June 1, 2016	Adopt regulations for evaluating adequacy of Groundwater Sustainability Plans (GSPs) and Groundwater Sustainability Agency (GSA) coordination agreements. [DWR]	Keep abreast of DWR activity on this issue. There will be three (3) workshops. Make sure that you or a representative can attend to ensure that you influence how the DWR will evaluate GSP. The regulations that DWR adopts will be considered emergency regulations and will take effect immediately. [§ 10733.2]
December 31, 2016	Publish report estimating water available for groundwater Replenishment. [DWR]	This report will be published on DWR’s website. [§ 10729(c)]
January 1, 2017	Publish groundwater sustainability best management practices. [DWR]	Keep abreast of DWR activity on this issue. There will be three (3) workshops. Make sure that you or a representative can attend to ensure that you can provide input on  what constitutes best management practices. [§ 10729(d)]
June 30, 2017	Establish GSAs.  [Local agency.]	An agency that desires to elect to be the GSA must publish notice pursuant to Government Code §6066 and hold a public hearing in the county or counties that overly a basin in advance of any election, and provide notice to DWR. [§10723(b), see also §10733.3 and §10735.2(a)(1).] Keep abreast of agencies that are opting to be a GSA and monitor their activity. Great power will lie with those who are apart of or control a GSA.
[July 1, 2017]	Designate basins as probationary where GSAs have not been formed. [State Water Resources Control Board (SWRCB)]	If a basin is declared probationary the SWRCB can implement its own interim GSP. The SWRCB will have the power to restrict extractions. [§ 10735.2(1)]
[July 1, 2017]	File annual groundwater extraction report with SWRCB by December 15 each year. [Groundwater users (Probationary Basins)]	Check with the SWRCB to ascertain the fee that must accompany your report. [§ 5202]
January 31, 2020	Adopt GSPs and begin managing basins under GSPs. [GSA (Med/High Priority Basins in Critical Overdraft)]	[§ 10720.7(a)(1)] or alternative submittal under [§ 10733.6]
[January 31, 2020]	Designate basins as probationary where GSPs have not been adopted in medium- and high-priority basins in critical overdraft. [SWRCB]	See comment to July 1, 2017. Keep abreast of the SWRCB web page. The Board will have to post notices of its determinations 30 days prior to making a final determination and receive public comment before declaring the basin probationary. If litigation prevents the formation of a GSA or the implementation of a GSP, then this deadline is delayed for a period of time equal to the delay caused by the litigation. [§ 10735.2(1)]
January 31, 2022	Adopt GSPs and begin managing basins under GSPs. [GSA (All other High/Med Priority Basins)]	[§ 10720.7(a)(2)]
[January 31, 2022]	Designate basins as probationary where GSPs have not been adopted in other medium- and high-priority basins. [SWRCB]	See January 31, 2020 comment. [§ 10735.2(1)]
[January 31, 2025]	Designate basins as probationary where GSPs are deemed inadequate or not being implemented. [SWRCB]	See comment to July 1, 2017. Keep abreast of the SWRCB web page. The Board will have to post notices of its determinations 30 days prior to making its final determination and receive public comment before declaring the basin probationary. [§ 10735.2(a)(5)(B)]
[January 31, 2040]	Achieve groundwater sustainability goals. The DWR may grant two five-year extensions. [GSA (Med/High Priority Basins in Critical Overdraft)]	The first extension is based solely on good cause. The second requires both good cause and a showing that sustainability will be reached. [§ 10727.2(3)(A)]
[January 31, 2042]	Achieve groundwater sustainability goals. DWR may grant two five-year extensions. [GSA (All other High/Med Priority Basins)]	See comment to January 31, 2042. [§ 10727.2(3)(A)]

*Deadlines and milestones were obtained by reviewing the Office of Planning and Research's compilation of AB 1739, SB 1168 and SB 1319 and resources from the Association of California Water Agencies.

California Enacts Legislation to Regulate Groundwater.

On September 16, 2014, following three years of drought and increasing inability to deliver water to Central Valley farms and business, Governor Jerry Brown signed AB 1739, SB 1168, and SB 1319. Collectively these bills constitute California’s Sustainable Groundwater Management Act (SGMA). Briefly put, the legislation, which is part of the Brown Administration’s Water Action Plan, is intended to increase local control and protection of California’s groundwater basins and sub-basins so as to achieve groundwater sustainability. It represents a departure from our state’s historic use of the court system to adjudicate issues such as pumping amounts, basin boundaries, overdraft and safe yields by applying common law principles. The changes are drastic and widespread, all groundwater users will be impacted.

In place of relying on adjudication by courts the SGMA creates Groundwater Sustainability Agencies (GSA) that are to develop local or regional Groundwater Sustainability Plans (GSPs) with the intent to achieve sustainable groundwater management, sustainable is not defined in the SGMA. A GSA can then file an action to determine the validity of the GSP which will be binding on all persons with interests in the affected basin. For example, a GSP can set limitations on the amount of water that a groundwater user can extract. A groundwater user who desires to challenge any such action will likely be limited to reverse validation actions under California’s Civil Code. These actions have onerous and burdensome notice requirements, and short periods of time within which to bring the action.

A GSA can be one or more local agencies that will assume responsibility to develop, adopt and enforce a GSP. The GSP represents a set of coordinated ongoing activities designed to manage groundwater within a basin so that water can be extracted in a way that avoids: chronic lowering of groundwater levels,  and significant and unreasonable: reductions in the ability of the basin to store groundwater, seawater intrusion, water quality degradation, land subsistence, adverse impacts to surface waters, etc. To create and enforce its GSP, a GSA will have the power to participate in defining basin boundaries, determine basin safe yield, regulate groundwater extraction, impose fees, impose fines, and curtail groundwater extractions when necessary.

If a GSA is not adopted to oversee a basin, if a GSA fails to submit a GSP that the State Water Resources Control Board (SWRCB) deems adequate, or if a GSA fails to successfully implement its GSP by meeting five year milestones over the course of the next forty years, the SWRCB can take control of the basin and unilaterally implement its own plan.

A compilation of the SGMA can be accessed from the Governor's Office of Planning and Research.